Attorney Victor Marshall and The New Mexico Supreme Court (NMSC)

Case 1:23-cv-00494-G8W-JFR Document 8 Filed 06/27/23 Page 1 of 38
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
VICTOR R. MARSHALL,
Plaintiff,
v. No. 1:23-CV-00494-JFR
C. SHANNON BACON, ChiefJustice

of the Supreme Court ofNew Mexico;
MIKE HAMMAN, State Engineer
of the State of New Mexico;
ROLF SCHMIDT-PETERSEN, Director
of the New Mexico Interstate Stream Commission;
HOWARD THOMAS, Chair
of the Disciplinary Board ofNew Mexico;
ANNE L. TAYLOR, Chief Disciplinary Counsel
for the Disciplinary Board;
JANE GAGNE, Assistant Disciplinary Counsel
for the Disciplinary Board;
Defendants,
in their official capacities only.
FIRST AMENDED COMPLAINT

FOR DECLARATORY AND INJUNCTIVE RELIEF
TO PROTECT THE FIRST AMENDMENT
AND DUE PROCESS
Victor R. Marshall, pro se

Case 1:23-cv-00494-GBW-JFR Document 8 Filed 06/27/23 Page 2 of 38
TABLE OF CONTENTS
A. INTRODUCTION AND SUMMARY.....1
B. PARTIES, JURISDICTION, AND VENUE.....9
C. AS A MATTER OF LAW, THE NEW CENSORSHIP RULES INFRINGE

FREE SPEECH AND DUE PROCESS.....11
D. THE CONTEMPT RULINGS VIOLATE DUE PROCESS, THE FIRST

AMENDMENT, THE EXCESSIVE FINES CLAUSE, THE EX POST FACTO
CLAUSE, AND THE CONFRONTATION CLAUSE.....17
E. THE NEW RULES AND SANCTIONS ARE WRITTEN TO COVER UP

JUDICIAL MISCONDUCT AND CONFLICTS OF INTEREST.....20
F. SEVERAL JUDGES HAVE VIOLATED THE LAWS ON JUCICIAL

IMPARTIALITY
AND DISCLOSURE.....23
G. CAUSES OF ACTION.....32
H. PRAYER FOR RELIEF.....34

A. INTRODUCTION AND SUMMARY
1. This complaint seeks declaratory and injunctive relief against the new censorship rules
which have been imposed on all lawyers practicing in New Mexico, and their clients. Rules 16-
802(A), 16-301, and 16-804(D) have been changed retroactively, and combined with a
prohibition against “after-acquired evidence” and new contempt penalties. These changed rules
operate together, to create a system of censorship that violates the First Amendment and Due
Process. These new rules were first used against Victor Marshall, and now they have been
institutionalized and extended to all attorneys and their clients, in two recent opinions: In re
Marshall, 2023-NMSC-006 (March 13, 2023) and 2023-NMSC-009 (March 16, 2023) (“the
March 2023 opinions”). The new censorship system is designed to conceal serious judicial
misconduct committed by several judges, including Chief Justice Shannon Bacon and judges
James Wechsler, Bruce Black, and Michael Bustamante.
2. The new censorship rules violate the First Amendment and due process rights of every
lawyer and every litigant in state court, and in federal court. The censorship rules are enforced
through disciplinary rules that apply to all lawyers, including lawyers who appear in federal
court. Rule 17-201 (disciplinary rules govern conduct in all courts).
3. The new censorship system violates many First Amendment precedents established
by the Supreme Court of the United States. On their face, the new rules violate the First
Amendment rights of litigants, lawyers, the press, and the public. The new rules eliminate truth
as a defense to a charge of defamation; eliminate the “actual malice” requirement in New York
Times v. Sullivan; and violate due process by prohibiting attorneys from using “after-acquired
evidence” to defend themselves.
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4. The new rules contradict innumerable decisions by the Supreme Court of the United
States protecting First Amendment rights, including dozens of cases that were brought to the
attention of disciplinary counsel, the disciplinary board, and the state supreme court. This
complaint marks these cases with an asterix * to show the constitutional protections which have
vanished without a trace, as if these governing authorities no longer exist.
UPDATE: ON JUNE 27, 2023, THE SUPREME COURT ISSUED COUNTERMAN V.
COLORADO, NO. 22-138, REAFFIRMING AND RELYING ON *NEW YORK TIMES AND
*GARRISON. Counterman reaffirms that the First Amendment requires proof of subjective
recklessness, i.e., defendant actually had “some subjective understanding” and “consciously
disregarded a substantial risk that his statements would be viewed as threatening violence.” The
First Amendment still demands “a subjective mental-state requirement” to protect against a
chilling effect and “self-censorship”, at 7-8, citing *NY Times and *Garrison. Threats are further
from the First Amendment’s central concerns about “chilled speech in Sullivan-type cases (i.e.,
truthful reputation damaging statements about public officials and figures).” Counterman rejects
a purely objective test like the one decreed by Justice Bacon. See paragraphs 37-42 below. In
Counterman, there are only 2 votes for overruling or cutting back New York Times v. Sullivan.
*New York Times Co. v. Sullivan, 376 U.S.254 (1964) (defamation of a public figure
requires a false statement of fact, and “actual malice,” meaning actual knowledge that the
statement was false, or “reckless disregard”);
*Garrison v. Louisiana, 379 U.S. 64 (1964) (reversing the Louisiana Supreme Court’s
decision that prosecuting attorney defamed local judges when he accused them of hampering the
investigation of vice in New Orleans; the NYTimes standard protects prosecuting attorney’s
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criticism of local judges, even if the utterances were false, because sanctions are permitted only if
the utterances were made with actual knowledge of falsity or “reckless disregard”)
*Gentile v. Nevada State Bar, 501 U.S. 1030 (1991) (Supreme Court reversed the Nevada
Supreme Court’s private reprimand against an attorney who criticized prosecutors because “. . .
speech critical of the exercise of the State’s power lies at the very center of the First
Amendment”);
*In re Sawyer, 360 U.S. 622 (1959) (reversing the Hawaii Supreme Court’s suspension of
an attorney accused of impugning the integrity of the judge);
*Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (abridging speech to
maintain the appearance of judicial impartiality is not a compelling state interest);
*Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 839 (1978) (protecting
judicial integrity and the institutional reputation of the courts is not a sufficient reason for
repressing free speech);
*Liljeberg v. Health Serv. Acquisition Corp., 486 U.S. 847 (1988) (judge’s failure to
monitor and disclose conflicts is a due process violation);
*Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009); and
*Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).
5. The new censorship system violates Due Process. The new rules also violate the Due
Process Clause of the Fourteenth Amendment in many ways:
(A) The rules now prohibit lawyers and their clients from using “after-acquired evidence”
to prove the truth of their statements;
(B) The new rules allow cases to be manipulated to achieve a desired result, by specially
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selecting a particular judge for a particular case, rather than using random assignment;
(C) The new rules allow cases to be manipulated to achieve a desired result, by allowing
judges to decide cases where they have hidden conflicts of interest, with no disclosures at all;
(D) The new rules allow judges to impose penalties for contempt without adequate
advance warning;
(E) The new rules allow fines to be imposed for legitimate criticism of judges;
(F) The new rules deprive attorneys of their heightened due process rights in disciplinary
proceedings, which are quasi-criminal in nature;
(G) The new rules strip attorneys of their rights under the Rules of Civil Procedure and
the Rules of Evidence, and the right of confrontation;
(H) The censorship system engages in viewpoint discrimination, and retaliation against
whistleblowers;
(I) The new censorship system can operate in secret, like the Star Chamber in England.
See Rule 17-304. The censorship apparatus can coerce false confessions from attorneys, by
pressuring them to express “remorse.”
6. The censorship rules target attorneys, because attorneys are especially vulnerable to
government censorship. All lawyers must have a license from the New Mexico Supreme Court
in order to speak in court, or to practice law at all. Rule 24-101(A). All lawyers are subject to
the Disciplinary Board, which has the power to punish lawyers in public or in secret.
7. The new rules penalize good faith arguments which lawyers and litigants make
under our adversarial system of justice. Good faith argument – vigorous advocacy – is
essential to assist judges and juries in sorting out disputes about the facts and the law.
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8. The new rules infringe the constitutional right of citizens to speak for themselves,
and to retain lawyers to speak for them. Attorneys do not speak for themselves. They speak
as advocates for their clients, like the 23 San Juan acequias that hired the Marshall firm.
Attorneys act as agents for their clients, so the act of the lawyer is the act of the client. San Juan
Agricultural Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶¶ 17-28, 36. When the new
rules infringe speech by attorneys, the rules are infringing the speech of clients – ordinary
citizens who come to court seeking justice.
9. The rules also infringe the First Amendment rights of the news media and the
public. News reporters cover court cases by quoting what the parties and their lawyers say,
inside the courtroom and outside. In this instance, disciplinary sanctions were imposed on an
attorney for statements that his clients made to the news media outside of court, even though the
law allows litigants to speak to the press. When the press is prevented from getting uncensored
information about court cases, citizens are deprived of their right to receive information about the
affairs of government – the core function of the First Amendment. Stanley v. Georgia, 394 U.S.
557, 564 (1969) (“the Constitution protects the right to receive information and ideas”);
*Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976)
10. The new censorship rules are designed to cover up wrongdoing by judges who act
on cases where they have concealed conflicts of interest. Whenever that happens, it is a gross
violation of constitutional rights, because the American legal system requires all judges to act
with absolute impartiality in each and every case, large and small. Judges must provide the due
process and equal protection of the law to every person, without favoring one side or the other.
Judges must disclose possible reasons for disqualification, even when they feel disqualification is
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not required. Judges cannot pressure litigants into waiving disqualification. These are very
difficult tasks, but most judges do act with integrity in each and every case.
11. No human system is perfect however, and sometimes the system breaks down. In all of
the instances of misconduct set forth in this complaint, there is one constant: the judges made no
disclosures whatsoever about actual or potential conflicts of interest.
12. Misconduct by Chief Justice Bacon. As a lawyer, Shannon Bacon personally
represented Governor Bill Richardson while Richardson was running the pay to play kickback
scheme that Frank Foy and Victor Marshall exposed in State ex rel. Foy v Vanderbilt and
subsequent cases under the Fraud Against Taxpayers Act. While Shannon Bacon was one of
Richardson’s lawyers, Bill Richardson and his cronies looted the state and enriched themselves at
taxpayers’ expense. Since she was one of his lawyers, it was part of Shannon Bacon’s job to
protect Bill Richardson. The law requires all attorneys to be loyal to their clients, even if the
clients are criminals. This legal duty of loyalty continues even after the lawyer no longer
represents the client, so Shannon Bacon cannot possibly claim to be an impartial judge when it
comes to Bill Richardson. The law does not allow her to be impartial, because the law forbids
her from taking any action adverse to her former client.
13. Shannon Bacon also was one of Richardson’s lawyers during the years that Richardson
negotiated a water agreement with the Navajo Tribe. This agreement was one of Richardson’s
signature initiatives as Governor, so it is likely that Shannon Bacon was involved or aware to
some degree. Regardless of the degree of her involvement, she still owes a broad duty of loyalty
to Richardson that prevents her from taking action adverse to him as a judge.
14. Justice Bacon did not disclose her dealings with Richardson, as the law requires. By
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refusing to make any disclosures, she was able to misuse her judicial position by acting as
Richardson’s protector, by covering up the pay to play frauds that Richardson committed, and to
get rid of challenges to Richardson’s water deal.
15. After Victor Marshall pointed to judicial misconduct by Justice Bacon and other judges,
Justice Bacon retaliated against him by suspending him from the practice of law in January 2022.
Then in March 2023 Chief Justice Bacon expanded the same sanctions to all attorneys, to deter
lawyers from blowing the whistle on judicial misconduct, and to punish them if they do.
16. Misconduct by Judge James Wechsler. For years, Judge James Wechsler has acted as
the specially designated judge deciding water cases where the State Engineer is a party, in courts
around New Mexico. In virtually every instance Judge Wechsler has ruled in favor of the State
Engineer. Meanwhile, the State Engineer has paid more than $3,000,000 in legal fees to
Judge Wechsler’s son and his son’s law firm. EX 1, in particular Contract No. 21998 for
$3,060,000 at pdf 39. It is gross misconduct for a judge to act on a case if one of the parties is
paying large amounts of money to one of the judge’s children, no matter what the reasons for the
payments. At the present time the defendants Hamman and Schmidt-Petersen are continuing to
pay Judge Wechsler’s son under a new or extended contract.
17. Judge Wechsler ruled against the San Juan acequias in favor of the Navajo Tribe
and its members, without disclosing that he had worked as a lawyer for the Navajo Tribe.
Judge Wechsler personally represented hundreds of tribal members as an attorney, and as a judge
he awarded them water, without disclosing their attorney-client relationship.
18. Judge Wechsler worked at DNA Legal Services, an agency or instrumentality of the
Navajo Tribe. While he worked as a lawyer at DNA, DNA lawyers gave litigation advice to the
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Tribe to support Navajo claims to the San Juan River – the very subject matter of the lawsuit that
Judge Wechsler later decided. EX 1, at pdf 9: “An action in the nature of a suit to quiet title in
the Tribe to 13,000,000 acre-feet of Colorado River Basin water should be brought. All users of
Colorado River Basin water . . . should be named as defendants.”
19. Misconduct by retired Judge Bruce Black. Retired Judge Bruce Black was specially
appointed to the New Mexico Court of Appeals to decide the appeal from Judge Wechsler’s
rulings. His special appointment to the Court of Appeals violated the New Mexico Constitution,
because the Constitution allows retired judges to be appointed only to act in the district courts,
not the appellate courts. N.M. Const. art. VI, § 15(C).
20. Retired Judge Black wrote the opinion affirming all of Judge Wechsler’s rulings in favor
of the Tribe, the U.S. and the State of New Mexico. State ex rel. State Engineer v. United States,
2018-NMCA-053. When he wrote his opinion, Judge Black did not disclose that he was
simultaneously working as a lawyer-investigator for the State of New Mexico. See EX 1,
Professional Services Agreements. It is absolutely unacceptable, and unconstitutional, for a
judge to be paid on the side to work as a lawyer for one of the parties to a case.
21. Judge Black also did not disclose that he had practiced law in partnership with Jeff
Bingaman, the chief sponsor of the legislation that Judge Black approved. Rather than using
random assignment, Judge Black was specially (and illegally) picked to decide the water case
because it was expected that he would uphold Bingaman’s legislation, and that is what he did.
22. Misconduct by retired Judge Michael Bustamante. Retired Judge Bustamante was
illegally appointed to decide an appeal in the pay to play litigation. Like Judge Black’s
appointment, Judge Bustamante’s appointment violated Article VI, § 15 of the New Mexico
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Constitution. Rather than using random assignment, Ex-judge Bustamante was specially (and
illegally) picked because it was expected that he would rule against Foy, and that is what he did.
23. Judge Bustamante is being paid large amounts of money to act as an unconstitutional
judge. EX 3 – payments of $71,843 in August 2022, towards a total authorization of $108,000.
These payments are in addition to his judicial retirement benefits. EX 4.
24. Similarly, it appears that retired Judge Wechsler is receiving significant payments for
working as a temporary judge during his retirement, on top of his judicial retirement benefits.
EX 5 – $97.41 per hour. Some retired judges are using these special assignments to pad their
retirement benefits, as was warned during the public debate in 1978. EX 23.
25. The public does not know who is paying these temporary judges, or their families,
because temporary judges are exempted from the disclosures that regular judges are required to
make. Judges Black and Bustamante list themselves for hire at fedarb.com, but FedArb asserts
that their cases, clients, and compensation are confidential.
B. PARTIES, JURISDICTION, AND VENUE
26. Plaintiff Victor R. Marshall practiced law continuously in New Mexico from 1975 until
January 2022. His CV is EX 6. Marshall served 8 years in the New Mexico Senate, including a
time as Co-Chair of the Senate Judiciary Committee. He co-sponsored the 1988 Constitutional
Amendment for merit selection of judges, and other judicial reforms.
27. Plaintiff Marshall apologizes to the Court for having to proceed pro se in seeking
declaratory and injunctive relief, but he has no choice in the matter. Given the censorship and
contempt rulings already imposed, any new attorney representing Marshall would be subject to
the same sanctions, if the attorney repeated any of the facts or law in Marshall’s defense.
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28. Defendant Thomas is the current Chair of the New Mexico Disciplinary Board.
Defendant Anne Taylor is Chief Disciplinary Counsel for the Disciplinary Board. Defendant
Jane Gagne is Assistant Disciplinary Counsel at the Disciplinary Board.
29. Defendant Shannon Bacon is a justice of the New Mexico Supreme Court. She currently
serves as Chief Justice of the Supreme Court. In April 2010, Democratic Governor Bill
Richardson appointed her to the district court bench. In February 2019, Democratic Governor
Michelle Lujan Grisham appointed her to the Supreme Court. In November 2020, Justice Bacon
won her current post as the Democratic candidate in a partisan state wide election.
30. Defendant Mike Hamman is the State Engineer of the State of New Mexico, and the chief
executive officer of the Office of the State Engineer (OSE), and a member of the New Mexico
Interstate Stream Commission (ISC). Defendant Rolf Schmidt-Petersen is the Director of the
New Mexico Interstate Stream Commission (ISC).
31. This complaint for declaratory and injunctive relief is filed against the defendants in their
official capacities only. If other persons take over the official capacities of the current
defendants, the new officials will be substituted as defendants. Any substitution of defendants
will not waive claims based on the contention that the current defendants engaged in
unconstitutional conduct.
32. This Court has subject matter jurisdiction under 28 U.S.C. § 1343, 42 U.S.C. §§ 1981,
1982, 1983, 1985, 1986, and 1988, the Administrative Procedures Act, 5 U.S.C. § 702, and the
case law cited herein, including Ex parte Young. This lawsuit alleges rights violations under the
First, Fourth, Fifth, Sixth, Eighth, Fourteenth, Fifteenth Amendments; U.S. Const. art. I, § 10
(bill of attainder, ex post facto law); and U.S. Const. art. VI (supremacy clause). This lawsuit
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presents federal questions under 28 U.S.C. § 1331, and asks for declaratory and injunctive relief
under the Declaratory Judgment Act, 28 U.S.C. § 2201, along with other relief available under 28
U.S.C. § 2202, the Administrative Procedures Act (APA), and the other powers of the court.
33. Venue is proper in this district under 28 U.S.C. § 1391(b)(2).
34. Sovereign immunity is not a bar to this complaint. This complaint comes within the
doctrine of Ex parte Young, 209 U.S. 123 (1908); Hill v. Kemp, 478 F.3d 1236, 1255-56 (10th
Cir. 2007) (Eleventh Amendment does not bar suits for declaratory and injunctive relief against
state officers in their official capacities); Crowe & Dunlevy, P.C. v. Stidham, 640 F.3d 1140,
1154 (10th Cir. 2011); and Mo’s Express, LLC v. Sopkin, 441 F.3d 1229, 1237, 1238 (10th Cir.
2006) (federal courts are free to reach their own conclusions about federal law). New Mexico
has abolished sovereign immunity as regards claims for injunctive and declaratory relief under Ex
parte Young. Gill v. PERB, 2004-NMSC-016, ¶¶ 16, 35.
35. In order to speed the declaratory and injunctive relief that is needed to stop the ongoing
denial of constitutional rights, this complaint does not seek damages. A loss of
First Amendment rights, “for even minimal periods of time, unquestionably constitutes
irreparable injury.” *Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality opinion). Indeed, “each
passing day may constitute a separate and cognizable infringement of the First Amendment.”
*Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (1975).
C. AS A MATTER OF LAW, THE NEW CENSORSHIP RULES INFRINGE FREE SPEECH

AND DUE PROCESS
36. The new rules and sanctions are set forth in 2023-NMSC-006, 2023-NMSC-009, and
Disciplinary No 05-2018-782. As usual, new or changed rules of law are announced first in
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cases, and then the formal published Rules and Comments are revised by committees to conform
to the case law. That will be a difficult task, because the new rules contradict the old rules.
RULE 16-802(A) DEFAMATION
37. On its face, changed Rule 16-802(A) contains several interrelated constitutional errors.
38. As changed, Rule 16-802(A) eliminates the constitutional requirement that the
statement must be false. Marshall I, 2023-NMSC-006, ¶ 16, n.2: “[W]e reject imposing a
requirement that the statement be, in fact, false . . . .” In other words, lawyer statements can be
sanctioned for defamation even if the statements are true. This ruling destroys the First
Amendment and the truth-seeking function of the judiciary.
39. The new rule on defamation eliminates the subjective component of “actual malice”
and “reckless disregard” as established by *NY Times, *Garrison, Harte-Hanks, and St.
Amant. Harte-Hanks Communications v. Connnaughton, 491 U.S. 657, 688 (1989) holds that
A “reckless disregard” for the truth, however, requires more than a departure from
reasonably prudent conduct. “There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of
his publication.” St. Amant, 390 U.S., at 731, . . . The standard is a subjective
one—there must be sufficient evidence to permit the conclusion that the defendant
actually had a “high degree of awareness of . . . probable falsity.” *Garrison v.
Louisiana, 379 U.S., at 74, . . . As a result, failure to investigate before
publishing, even when a reasonably prudent person would have done so, is not
sufficient to establish reckless disregard. See St. Amant, supra, 390 U.S., at
731,733, . . . .
In 2023-NMSC-006, ¶ 17, Justice Bacon rejects Harte-Hanks, saying that that “We decline this
invitation.” This is an overt repudiation of the First Amendment, and the Supremacy Clause.
The courts of New Mexico are not free to “decline” to follow controlling constitutional
precedents such as Harte-Hanks, *New York Times, St. Amant, and *Garrison.
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40. At paragraph 18 the opinion mis-cites ABA model rule 8.2, which expressly conforms to
the “reckless disregard” standard under the First Amendment. Harte-Hanks holds that an
extreme departure from professional standards is not sufficient to establish “actual malice”:
“Today, there is no question that public figure libel cases are controlled by the New York Times
standard and not by the professional standards rule.” Harte-Hanks, 491 U.S. at 666.
41. At paragraph 22 the new interpretation of Rule 16-802 mis-cites *Gentile, for the
commonplace proposition that lawyers are subject to some restrictions on speech, while ignoring
the actual holding in Gentile: the federal Supreme Court reversed the Nevada Supreme Court for
issuing a private reprimand to an attorney who criticized prosecutors. 501 U.S. at 1058.
42. Changed Rule 16-802(A) violates the First Amendment by leaving out most of the
constitutional requirements for defamation, which are accurately set out in the NMSC’s
uniform jury instructions, UJI 13-1001 through 13-1014. Inter alia, changed Rule 16-802(A)
destroys the following constitutional protections: that the prosecution has the burden of proving
that the communication contains a statement of fact rather than opinion; that the statement of fact
was false; that the communication was defamatory; and that the false statement was made with
actual malice. Truth is a defense to all defamation actions, and so are all privileges.
43. New Rule 16-802(A) violates the due process clause by incorporating a prohibition
against “after acquired evidence” which bars the defendants from proving that their
statements were true. Part 2 holds that “after-acquired evidence is not relevant to the
determination of whether an attorney made a statement with reckless disregard for its truth or
falsity.” Attorneys are no longer allowed to prove that their statements were true, or at least that
their communications were good faith arguments about disputed facts and law.
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44. The “after-acquired evidence rule” also eliminates discovery, that is the process by
which the judicial branch gathers evidence after the fact in order to determine the truth, and to
apply the laws accordingly. This is the essence of the judicial process.
45. As “clarified,” Rule 16-802(A) violates the absolute privilege in *Helena Chemical.
46. Rule 16-802(A) now conflicts with Rule 16-306 on trial publicity.
47. The new Rule revives the repugnant and unconstitutional doctrine of seditious libel,
whereby “The greater the truth, the greater the libel.” In America, that doctrine died in 1735.
48. The opinion does not address the press release, but nevertheless it upholds the sanctions
imposed for communicating with the news media. 2023-NMSC-006, ¶ 3 n.1.
49. The new rule violates *Lilijberg because it excuses judges from monitoring and
disclosing conflicts of interest. Instead, the new rule penalizes lawyers who raise questions that
the judges should have raised sua sponte. It is the judge’s duty to volunteer information, not the
parties’ duty to ferret it out. *American Textile Manufacturers Inst. v. The Limited, Inc., 190
F.3d 729, 742 (6th Cir. 1999).
50. The changed rules are facially invalid under the overbreadth doctrine because they
prohibit “a substantial amount of protected speech” relative to their legitimate applications.
United States v. Hansen, 599 U.S. ___, No. 22-179, at 1 (June 23, 2023).
Rule 16-301 FRIVOLOUS PLEADINGS
51. Part C of 2023-NMSC-006, ¶ 34 ties Rule 16-301 to Rule 16-802(A) on defamation, so
the changed Rule 16-301 suffers from all the constitutional errors listed in the preceding section.
In addition, there are further errors in the new “clarified” Rule 16-301.
52. Rule 16-301 now prevents lawyers from taking action on behalf of their clients
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based on information that is incomplete, which is the usual situation during litigation. Prior
to March 2023, the old rules expressly authorized attorneys to take action when all the facts are
not yet known. See Official comment 2 to Rule 16-301:
The filing of an action or defense or similar action taken for a client is not
frivolous merely because the facts have not first been fully substantiated or
because the lawyer expects to develop vital evidence only by discovery. . . . Such
action is not frivolous even though the lawyer believes that the client’s position
ultimately will not prevail.
This authorization has been abrogated by the ruling that “we consider only whether the attorney
possessed an objectively reasonable factual basis for the statement at the time it was made.”
2023-NMSC-006, ¶ 26.
53. As changed, Rule 16-301 now contradicts the Rules of Professional Conduct. The Rules
are written “in recognition of the fact that a lawyer often has to act upon uncertain or incomplete
evidence of the situation.” Preamble to Rules, adopted as Conclusion of Law 21 (“COL 21”).
54. The new rules operate together to create a circular loop of ignorance in litigation:
lawyers cannot file pleadings unless the pleadings are based on fully substantiated facts which
are already known; in turn the pleadings set the scope of discovery; so discovery is limited to
facts already known; and in any event “after-acquired evidence” is immaterial and inadmissible.
55. The new term “frivolous” is unconstitutionally vague and overbroad. It will be used
as a weapon against unpopular views. The term frivolous is so broad that it is commonly used by
lawyers and some judges as a label to criticize any contention they disagree with. Without the
clarifications in the official comments, the word “frivolous” is vague and overbroad, and the
term will be used to chill and censor unpopular speech.
Vague rules offend the due process clause because they deny a “person of ordinary
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intelligence a reasonable opportunity to know what is prohibited, so that he may

act accordingly.” A vague disciplinary rule also “impermissibly delegates basic
policy matters to . . . (officials charged with it enforcement) for resolution on an
Ad hoc and subjective basis, with the attendant dangers of arbitrary and
discriminatory application.” Grayned v. City of Rockford, 408 U.S. 104, 108-09
(1972). Vague rules that restrict expression also offend the first amendment
because they chill freedom of speech. Their uncertain meanings require those
persons who are subject to the rule to “‘steer far wider of the unlawful zone,’ . . .
than if the boundaries of the forbidden areas were clearly marked.” Baggett v.
Bullitt, 377 U.S. 360, 372 (1964).
Hirschkop v. Snead, 594 F.2d 356, 370-71 (4th Cir. 1979).
Rule 16-804(D) CONDUCT PREJUDICIAL TO THE ADMINISTRATION OF JUSTICE
56. It is essential – not prejudicial – to the administration of justice that lawyers raise
questions about possible judicial misconduct. All lawyers dread having to do this, but it is
their duty nonetheless. “When an attorney discovers a possible ethical violation concerning a
matter before a court, he is not only authorized but is in fact obligated to bring the problem to
that court’s attention.” COL 25, citing *In re Gopman, 531 F.2d 262, 265 (5th Cir. 1976),
57. On its face Rule 16-804(D) violates the First Amendment, because it allows lawyers to be
sanctioned if they do not “vigilantly strive to maintain the confidence of the public” in the legal
profession; if they inconvenience other counsel and the court; if they make disparaging remarks
about judges or the judicial system; or engage in “innuendo and supposition,” even if the
statements are true. As a matter of law, injury to official reputation is insufficient to justify
restrictions on speech. *NY Times, 376 U.S. at 272-73 (injury to official reputation is an
insufficient reason “for repressing speech that would otherwise be free”); *Garrison, supra;
*Landmark, 425 U.S. at 841 (“neither the Commonwealth’s interest in protecting the reputation
of its judges, nor its interest in maintaining the institutional integrity of its courts is sufficient to
16
justify the subsequent punishment of speech”); Bridges v. California, 314 U.S. 252, 270-71
(1941) (public respect for the judiciary cannot be won by shielding judges from criticism).
58. The new rules have revived the unconstitutional doctrine of “seditious libel.” In
England, the law made it a crime to say something derogatory or critical about a public official,
even if the statements were true.
The concept of seditious libel arrived in North America with the first English
colonists. Under English law, it was a criminal offense to publish or otherwise
make statements intended to criticize or provoke dissatisfaction with the
government. Truth was not a defense and, in fact, made the offense worse.
English libel law applied the following maxim: “The greater the truth, the
greater the libel.”
First Amendment Encyclopedia, www.mtsu.edu/first-amendment/article/1017/seditious-libel.
59. Seditious libel was based on the notion that if criticism of public officials is true, then the
truth will create an even greater public scandal, which undermines the government.
The dominant purpose of the First Amendment was to prohibit the widespread
practice of governmental suppression of embarrassing information. It is common
knowledge that the First Amendment was adopted against the widespread
use of the material that is embarrassing to the powers-that-be.
*New York Times Co. v. United States (the Pentagon Papers), 403 U.S. 713, 723- 24 (1971).
60. The American colonies rejected the doctrine of seditious libel long before the formation
of the United States or the passage of the First Amendment. In 1735, the newspaper printer John
Peter Zenger was prosecuted for seditious libel because he allegedly defamed the Chief Justice of
New York. The Chief Justice fixed the case by hand-picking two judges for Zenger’s case. As
expected, those judges ruled that the articles defamed the Chief Justice. This left the jury to
decide only whether Zenger had published the articles, a fact which he had already admitted. But
Zenger’s lawyers argued to the jury that the defamatory statements were true, even though that
17
argument was legally impermissible at the time. The jury acquitted Zenger. Richard Kluger,
*Indelible Ink, The Trial of John Peter Zenger and the Birth of America’s Free Press (2016).
D. THE CONTEMPT RULINGS VIOLATE DUE PROCESS, THE FIRST AMENDMENT,

THE EXCESSIVE FINES CLAUSE, THE EX POST FACTO CLAUSE, AND THE
CONFRONTATION CLAUSE.
61. During the remote video hearing on May 25, 2022, there were more due process
violations. Chief Justice Bacon took away Marshall’s basic constitutional protections. She
barred Marshall from speaking in his own defense, even to cite constitutional precedent, unless
he first surrendered the protections of procedural due process:
Chief Justice Bacon – But you can make the presentation, it just has to be
under oath.
[06:03] Marshall – Will it be subject to cross-examination, rebuttal, or any of
the usual evidentiary safeguards?
[06:12] Bacon – No Sir......
[07:17] Marshall – Justice, let me point out the obvious due process and
confrontation problems involved in this procedure, where you say that it
won’t be subject to the Rules of Civil Procedure, or rebuttal, or, by the way,
witnesses.
EX 17. A videotape of the hearing is EX 18. It shows that Marshall spoke for a total of 139
seconds, with permission from the court. He was respectful; he never even raised his voice.
62. The proceedings and the contempt order on May 25-26, 2022 violate procedural due
process in several ways:
(A) Disbarment proceedings have heightened due process protections because they are
quasi-criminal in nature. *In re Ruffalo, 390 U.S. 544, 551 (1968). These added protections
include right to present evidence, to argue the law, and to confront accusers. Inter alia, the
proceedings denied Marshall the right to confront his accusers, because no accusers were ever
18
identified in this quasi-criminal proceeding. Prosecutors Gagne and Taylor were the only
accusers, and they were not witnesses or subject to cross-examination.
(B) In New Mexico, the Rules of Civil Procedure and Evidence govern disciplinary
proceedings, Rules *17-301 and *17-302. However Chief Justice Bacon eliminated even these
minimum protections from the Marshall proceedings, without advance warning.
(C) Marshall was not given proper warning before contempt was imposed, as required by
due process and Rule 1-093.
(D) The May 25 hearing was an overt attempt to coerce Marshall and his attorney into
giving up his fundamental rights in order to speak at all.
63. The punitive fine of $2,000 violates the Excessive Fines clause of the Eighth Amendment
and the Ex Post Facto clause, because the maximum allowable fine on May 25 was $1,000, not
$2,000. The opinion on March 16, 2023 impermissibly changes criminal penalties retroactively.
64. The sanctions retaliate against Marshall because he voiced legitimate legal objections and
refused to waive his rights. See Timbs v. Indiana, 586 U.S. ____, 139 Sup. Ct. 682, 689 (2019)
(excessive fines “undermine other constitutional liberties. Excessive fines can be used, for
example, to retaliate against or chill the speech of political enemies, . . . .”)
65. The sanctions violate Marshall’s rights to speak in his own defense under the First, Fifth,
Sixth, Eighth, and Fourteenth Amendments. Justice Bacon’s actions were designed to silence
Marshall, and did so.
66. Prosecutors Gagne and Taylor sought and obtained sanctions for alleged violations of
Rule 17-212(A) and (B), because Marshall gave notice of his suspension by email and efiling
rather than certified mail with no return receipt, and because he tried to assist his clients in
19
getting new counsel. There are several constitutional problems here: (A) Email is better, faster
and more reliable than mail. (B) In this day and age, certified mail no receipt is not reasonably
calculated to give actual notice as required by due process. Delivery of certified mail is slow and
unreliable, and many people are afraid to open a certified mail. (C) The prosecutors interfered
with legitimate protected communications between the firm and its clients, in a situation where
there was no danger that the firm was defrauding or deceiving the clients. (D) These actions
were intended to impede the clients from pursuing the water and the pay to play litigation.
67. Given the facial invalidity of the changed rules and the sanctions on their face, they must
be reversed for the evident errors set forth above in this section. Beyond the obvious errors, there
are hidden reasons for the assault on the rights of litigants, attorneys, the press, and the public.
E. THE NEW RULES AND SANCTIONS ARE WRITTEN TO COVER UP JUDICIAL

MISCONDUCT AND CONFLICTS OF INTEREST.
.
68. Marshall did not cheat any of his clients, steal from them, deceive them, or wrong them in
any way. The disciplinary charges are highly unusual, because there is no claim that disciplinary
proceedings are needed to protect clients, which is the primary purpose of the disciplinary rules.
Here the disciplinary proceedings damaged the San Juan acequias by depriving them of legal
representation, although they wanted Marshall to continue. The disciplinary charges are based on
the purported damage to the reputation of certain judges and the judicial branch, rather than any
injury to clients or the public. That is constitutionally insufficient, see cases above.
69. The new rules are pretextual. Their main purpose and effect is to cover up judicial
misconduct. Victor Marshall was suspended because he discovered serious judicial misconduct
and reported that misconduct, as he was required to do by law, in order to protect his clients and
20
the integrity of the judicial system. COL 25.
70. The judicial misconduct is measured by Supreme Court precedents that set the standards
for judicial disclosure and recusal. These standards are necessary to carry out the fundamental
due process right to an impartial tribunal. Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 876
(2009) (“It is axiomatic that ‘[a] fair trial in a fair tribunal is a basic requirement of due
process.’”); see also Los Chavez Cmty. Ass’n v. Valencia County, 2012-NMCA-044, ¶ 23, 277
P.3d 475 (Due process requires a “neutral and detached judge in the first instance.”).
71. In Liljeberg, 486 U.S. 847 (1988), the United States Supreme Court vacated a trial
decision by a federal judge who sat on the board of Loyola University in New Orleans, an
institution of the Roman Catholic Church. Loyola University would have been indirectly
impacted by the court’s decision, even though the University and its affiliates were not parties to
the action. Even though the judge was unaware of the University’s indirect economic interest:
The judge’s forgetfulness . . . is not the sort of objectively ascertainable fact that
can avoid the appearance of partiality. . . . Under section 455(a) . . . recusal is
required even when a judge lacks actual knowledge of the facts indicating his
interest or bias in the case if a reasonable person, knowing all the circumstances,
would expect that the judge would have actual knowledge.
*Health Serv. Acquisition Corp. v. Liljeberg, 796 F.2d 796, 802 (5th Cir. 1986).The judge’s
failure to disclose and recuse required that the judgment he had rendered be vacated, post-
judgment and post-appeal, 486 U.S. at 867-68:
[Granting vacatur] may prevent a substantive injustice in some future case by

encouraging a judge or litigant to more carefully examine possible grounds for
disqualification and to promptly disclose them when discovered.
72. *Liljeberg illustrates that it is impossible to enforce the constitutional requirement for
judicial impartiality unless all judges monitor their cases and disclose all pertinent information
21
before they take action in a case,
73. In *Caperton, 556 U.S. 868, 872 (2009), the United States Supreme Court reversed a
decision by the West Virginia Supreme Court in a civil case, because “the Due Process Clause of
the Fourteenth Amendment was violated when one of the justices in the majority [on the West
Virginia Supreme Court] denied a recusal motion.” The justice should have agreed to the recusal
motion because he had received extraordinary campaign contributions from the CEO of a coal
company that was a party to the case. 556 U.S. at 872, 882, 883:
Under our precedents there are objective standards that require recusal when “the
probability of actual bias on the part of the judge or decisionmaker is too high to
be constitutionally tolerable.” Withrow v. Larkin, 421 U.S. 35, 47 (1975).
In defining these standards the Court has asked whether, “under a realistic
appraisal of psychological tendencies and human weakness,” the interest “poses
such a risk of actual bias or prejudgment that the practice must be forbidden if the
guarantee of due process is to be adequately implemented.” Withrow, 421 U.S. at
47
74. In Williams v. Pennsylvania, 579 U.S. 1, 14-17 (2016), the Supreme Court reversed a
unanimous decision by the Pennsylvania Supreme Court. Williams holds that a due process error
occurs when a disqualified judge acts on a case, even if the jurist is part of a multimember panel
and the jurist’s vote was not decisive:
The Court has little trouble concluding that a due process violation arising from
the participation of an interested judge is a defect “not amenable” to
harmless-error review, regardless of whether the judge’s vote was dispositive.
A multimember court must not have its guarantee of neutrality undermined, for
the appearance of bias demeans the reputation and integrity not just of one jurist,
but of the larger institution of which he or she is a part.. When the objective risk
of actual bias on the part of a judge rises to an unconstitutional level, the failure to
recuse cannot be deemed harmless.
75. Marshall reported judicial misconduct in cases that directly or indirectly affect all two
22
million people who live in New Mexico. The first is the litigation over water rights in the San
Juan River Basin. State ex rel. State Engineer v. United States, No. D-1116-CV-197500184.
The second is the series of cases filed by Frank Foy under the Fraud Against Taxpayers Act to
recover money for taxpayers from the people who ran a pay to play kickback scheme at the State
Investment Council (SIC) and the Educational Retirement Board. State ex rel. Foy v. Vanderbilt
Capital Advisors, LLC, No. D-101-CV-200801895; State ex rel. Foy v. Austin Capital
Management, LTD, No. D-101-CV-200901189; State ex rel. Foy v. Richardson, No. D-202-CV-
202003004; and related cases.
76. These lawsuits all arise from illegal actions taken by Bill Richardson while he was
Governor of New Mexico (from 1/1/2003 through 12/31/2010). The water rights litigation arose
because Richardson signed a water agreement with the Navajo Tribe that violated federal and
state water laws, damaging the San Juan acequias. Richardson signed his deal unilaterally,
without authorization from the Legislature. The fraud litigation arose because Richardson ran a
pay to play scheme where Wall Street firms paid kickbacks to Richardson and his cronies. EX 19
(audio tapes: “The Governor runs this shit, and they run the Governor.”) . During the years that
Richardson was negotiating his Navajo water agreement and running his kickback scheme, one
of his principal lawyers was C. Shannon Bacon.
F. SEVERAL JUDGES HAVE VIOLATED THE LAWS ON JUDICIAL IMPARTIALITY AND

DISCLOSURE.
77. In all these instances of judicial misconduct, there is one common factor: none of
the judges made any disclosures whatsoever. The record is devoid of any disclosures by Judge
Wechsler, Judge Black, Justice Bacon, or Judge Bustamante. The new rules are an attempt to
23
distract attention away from this uncontroverted fact. The right to an impartial judge can be
secured only if the judge voluntarily makes full disclosures, so a judge’s failure to monitor and
disclose conflicts of interest is itself a due process violation. *Liljeberg, 486 U.S. at 860.
MISCONDUCT BY JUDGE JAMES WECHSLER
78. Judge James Wechsler had disqualifying conflicts of interest which he did not
disclose. He was previously employed as an attorney by the Navajo Nation at DNA Legal
Services. DNA was an agency or instrumentality of the Navajo Nation. Its mission was to
advance the interests of the Navajo people. In the Navajo water litigation, the Navajo people
were aligned on one side of the case, so Judge Wechsler should have declined the case.
79. If Judge Wechsler wanted to sit on the Navajo water case, he was required to make
full disclosures about possible grounds for disqualification to all parties, on the record, at or
before the time of his special appointment in November 2009. *Rule 21-211; *Liljeberg.
Failure to disclose is a separate violation of due process, sufficient to require disqualification.
80. Judge Wechsler’s prior service as a lawyer for Navajo interests created an
irreconcilable conflict of legal duties. On the one hand, Judge Wechsler still owes a continuing
duty of loyalty and confidentiality to his former clients and his former employer. Code of
Professional Conduct Rule 16-109 (duties to former clients); *Living Cross Ambulance Serv.,
Inc. v. New Mexico PRC, 2014-NMSC-036, 338 P.3d 1258; *Roy D. Mercer, LLC v. Reynolds,
2013-NMSC-002, ¶ 1, 292 P.3d 466. He has continuing duties of loyalty to the Navajo Nation
(his former employer); to his former law firm (DNA) and its clients; to DNA’s mission (the
advancement of the Navajo people); and to the many Navajo clients that he personally
represented. On the other hand, all judges have a duty to act with absolute impartiality to all
24
parties, including the parties who opposed the Navajo water claims. *Rule 21-202.
81. The committee that chose Judge Wechsler to decide the Navajo water claims knew
that he had worked as a lawyer for Navajo interests. Judge Wechsler testified that he was
recommended by a three person committee consisting of Justice Richard Bosson, Special Master
Steve Snyder, and Celina Jones, an attorney at the Administrative Office of the Courts. EX 9.
Justice Bosson knew that Judge Wechsler had worked at DNA because they worked as co-
counsel in at least one case, Natonabah v. Board of Education, 355 F. Supp. 716 (D.N.M. 1973),
which lists James Wechsler and Richard Bosson as co-counsel for the Navajo plaintiffs:
*718 James Wechsler, Crownpoint, N. M., Richard C. Bosson, Albuquerque, N.M
82. The attorneys for the Navajo Nation, the U.S., and the State knew that Judge
Wechsler had worked as an attorney for DNA as an advocate for the Navajo people. They
expected, quite correctly, that Judge Wechsler would rule for them. So they said nothing.
83. By contrast, the acequias and local water owner defendants and their attorneys knew
nothing about these circumstances. If Judge Wechsler or the government attorneys had made the
required disclosures in 2009, the acequias opposing the Navajo water claims would have
promptly moved to recuse him. If Judge Wechsler or the opposing lawyers had made the
mandatory disclosures, there would have been no disciplinary action, and Mr. Marshall would
not have lost his license to practice law, and the acequias would not have lost their only attorney.
84. Judge Wechsler awarded water to Navajos whom he had personally represented as
an attorney. While he worked as an attorney at the DNA office in Crownpoint, New Mexico,
Judge Wechsler personally represented hundreds of Navajos living in the region. In his final
decree, Judge Wechsler awarded water for his former clients, without disclosing that he
25
personally had represented them. Supplemental Partial Final Judgment (Nov. 1, 2013).
85. The State Engineer has paid more than three million dollars in legal fees to Judge
Wechsler’s son and his law firm, while Judge Wechsler presided over water cases where
the State Engineer is a party. EX 1. This is grossly improper conduct by everyone involved –
Judge Wechsler, Jeffrey Wechsler, Mike Hamman, and Rolf Schmidt-Petersen. These huge
payments give Judge Wechsler a financial incentive to stay in the good graces of the OSE and the
ISC, because they can terminate his son’s lucrative contract at any time “for convenience”,
shutting off the income flow to the judge’s immediate family.
86. While James Wechsler worked as an attorney at DNA, DNA gave legal advice to the
Navajo Tribe about Navajo water claims, the very subject matter of the case that he later
decided in favor of the Tribe. EX 1, DNA letter and legal memorandum to the Navajo Tribal
Council, the highest governing body of the Navajo Nation, recommending litigation strategies to
maximize Navajo water claims. *Rule 21-211(A)(5)(a) required Judge Wechsler to disqualify
himself, whether or not he personally worked on those water claims. *Rule 16-110; *Mercer.
87. The lead attorney for the Tribe (Stanley Pollack) knew that DNA advised the Tribe on its
water claims, because he had the DNA memo in his files (and withheld it). When the acequias
discovered that Judge Wechsler had worked as a DNA attorney, they filed an emergency motion
for recusal. EX 14. The acequias’ motion caused panic among the government lawyers and
staffers, because they realized that the motion might lead to disqualifying Judge Wechsler and
vacating his judgment. So they began to fabricate a cover story which is largely false, in order to
frame Marshall and to distract from the truth. See Barnes v. City of New York, No. 21-33 (2d
Cir. May 22, 2023) (due process violated when fabricated proof is used to frame a defendant).
26
The Court of Appeals has no capability to discover and weigh evidence, but Judge Black
accepted Mr. Pollack’s misrepresentations about DNA at face value.
88. DNA attorneys also acted as advocates for Navajo water rights before Congress. EX 16,
Congressional hearings in Window Rock. DNA attorneys were representing the Navajo Tribe on
water rights as advocates “in non-adjudicative proceedings.” See *Rule 16-309.
89. Judge Wechsler engaged in ex parte communications with the State Engineer, and
refused to disclose them to the other parties.
90. Judge Wechsler expedited the Navajo side of the case while delaying the non-Navajo
claims for more than 200 years into the future. Judge Wechsler granted so-called “expedited
inter se” status to the Navajo claims, while denying the same expedited status to the opposing
water claims by non-Navajos. February 15, 2013 order disallowing the acequias’ answer and
counterclaim. Judge Wechsler in 2017 allowed the State Engineer to propose a schedule that
non-native water rights will take more than 200 more years to adjudicate. EX 20. The schedule
of more than two centuries violates the constitutional rights of water owners. “Due process of
law requires prompt notice with ‘the opportunity to be heard at a meaningful time and in a
meaningful manner.’” *Sandia v. Rivera, 2002-NMCA-057, ¶¶ 12 and 17, 132 N.M. 201,
(quoting *Mathews v. Eldridge, 424 U.S. 319, 333 (1976)); *Rule 21-206.
MISCONDUCT BY RETIRED JUDGE BRUCE BLACK
91. The special appointments of retired judge Black and retired judge Bustamante to
the Court of Appeals violated the New Mexico Constitution.
92. Bruce Black and Michael Bustamante were not constitutionally qualified to act as judges
in the New Mexico Court of Appeals, because the New Mexico Constitution allows retired
27
judges to be appointed to act only in the district courts, not the appellate courts. N.M. Const. art.
VI, § 15(C). A due process violation occurs when legal rights are purportedly adjudicated by
someone who has no judicial authority.
93. When he wrote his Court of Appeals decision in favor of the State of New Mexico,
Bruce Black was being paid on the side to work as a lawyer for the State of New Mexico.
After he agreed to act as a judge on the Navajo case, Bruce Black signed contracts to work
confidentially as an attorney and private investigator for the University of New Mexico. EX 1,
professional services agreements. UNM is an institution of the State of New Mexico, a party to
the San Juan litigation. UNM itself participated in the San Juan adjudication. The State
Engineer hired The Utton Center at UNM to provide a so-called “ombudsman” to obtain
settlements of water rights from local water owners. UNM’s television station created and
broadcast a purported news program which lobbied for the Navajo legislation.
94. By agreeing to act as a lawyer for a party, retired Judge Black created an irreconcilable
conflict of interest, because his duties of loyalty as a lawyer to a current client under Rules 16-
107 and 16-108 clashed with his duties of absolute impartiality and neutrality as a judge.
95. Retired Judge Black did not disclose he had practiced law as a partner with Jeff
Bingaman, the prime sponsor of the water legislation that Black later approved as a judge.
On May 31, 2006 Senator Bingaman met with local water owners at San Juan Community
College in Farmington to discuss the competing claims to the San Juan River. The meeting was
attended by Senator Bingaman; his staffer Mike Connor (who later became head of the Bureau of
Reclamation); local water owners; and Victor Marshall as their attorney. The proposed
legislation would not be effective unless and until its legality and fairness was approved by the
28
state District Court in San Juan County. Marshall told Senator Bingaman that passage of a
federal statute would not put an end to the controversy, because the agreement would be still
challenged in court by local water owners. When he heard this, Senator Bingaman looked
surprised and perturbed. He turned to Mike Connor and said, “You mean if we pass this thing, it
just goes back to court?” Mike Connor replied “Yep.”
96. After that meeting, Richardson’s people and Bingaman’s people began working to
arrange the necessary approval from the state judiciary. Ultimately this resulted in the special
appointment of Judge Wechsler to decide the Navajo case, even though he was an ex-tribal
lawyer. And it also led to the irregular appointment of Bruce Black to approve the legislation
sponsored by his former law partner Jeff Bingaman
97. Upon information and belief, large parts of Judge Black’s Court of Appeals opinion
were researched and written by Paul Fyfe, who had disqualifying conflicts of interest
because he was another ex-DNA attorney like Judge Wechsler. EX 24.
JUDICIAL MISCONDUCT BY JUSTICE SHANNON BACON
98. Justice Bacon has misused her position on the Supreme Court to cover up for her client
Bill Richardson, to cover up her own misconduct, to retaliate against Marshall and his clients
because they opposed Bill Richardson, and to create a censorship apparatus that will allow her to
arrange the outcomes of cases.
99. Justice Bacon refused to disclose any information whatsoever about her conflicts of
interest, so that she could remain in a position to arrange the outcomes of at least three cases: the
water litigation; the pay to play litigation; and the disciplinary proceedings.
100. For many years Shannon Bacon represented Bill Richardson, both personally and
29
officially, until Gov. Richardson appointed her as a judge in 2010. Shannon Bacon worked hard
to advance Bill Richardson’s agenda and to protect him from civil and criminal liability. EX 27,
Greg Fouratt letter. As part of her job as a lawyer, Shannon Bacon worked to prevent Bill
Richardson’s misdeeds from becoming public, and from being exposed in court. For example, it
is probable that Paul Bardacke and Shannon Bacon worked to cover up Bill Richardson’s
drunkenness and his many sexual abuses. That was part of their duties as Richardson’s lawyers,
so long as they stayed within the bounds of the law, which may have been difficult. Although
that might have been appropriate conduct while Bacon was acting as Bill Richardson’s lawyer
and protector, it was completely forbidden for her to continue to act as Richardson’s lawyer after
she became a judge. Like everyone else, Bill Richardson is entitled to have his lawyer in court,
but he is not entitled to have his lawyer on the court.
101. It is certain that Shannon Bacon represented the ringleader of the pay to play scheme,
namely Bill Richardson himself. It is also certain Shannon Bacon worked with Bruce Malott,
one of the key fraudfeasors, because Marshall personally observed that during a meeting with her
on March 9, 2005. EX 1, motion for recusal.
102. Shannon Bacon has years of extrajudicial knowledge about Bill Richardson, and she
would be an important witness in the pay to play litigation (and perhaps in the water litigation).
Accordingly, Shannon Bacon has a personal motive to kill the pay to play cases. When a judge
has significant extrajudicial knowledge, disqualification is mandatory. *Rule 21-211 (A)(1).
103. Shannon Bacon has a personal bias, because she is grateful to Richardson for
advancing her legal career, paying her large amounts of money, and appointing her to the
bench. Most human beings would have feelings of gratitude for that. Her gratitude is a personal
30
bias which makes disqualification mandatory. *Rule 21-211(A) (1). *Caperton and Withrow
command that questions concerning judicial disqualification must be decided with “a realistic
appraisal of psychological tendencies and human weakness.” There are many reasons why
Shannon Bacon cannot plausibly claim to be impartial.
104. Shannon Bacon and her associates showed their gratitude to Bill Richardson by
making large contributions to his campaigns. While Richardson was paying the Sutin firm
more than $750,000, the Sutin firm made $36,215 in bundled contributions to Richardson’s
presidential campaign. Like other Sutin lawyers, Shannon Bacon contributed $2,300, the
maximum amount allowed. EX 26. Political contributions like this are especially problematic
for attorneys and judges, so much so that the New Mexico Supreme Court in 2012 banned judges
from contributing to political campaigns. Rule 21-401(C)(4).
105. Justice Bacon’s conduct discriminates in favor of Democrats against Republicans
and independents, in violation of the constitutional rights of political association and
political expression. See NAACP v. Button, 371 U.S. 415 (1963). In New Mexico, judges are
initially appointed, but they cannot hold office for very long unless they win a partisan election.
N.M. Const. art. VI, § 33(A). When the constitutional amendment for “merit selection” was
passed in 1988, Democratic legislators insisted on this provision to protect the political
hegemony of the Democratic Party. Judicial appointees like Justice Bacon cannot continue in
office unless they obtain the approval of the Democratic Party – the Democratic Party’s
nomination. So judges have an incentive to adhere to the Party’s orthodoxy, and that influences
their decision making in ways that judges may not realize, even though most judges do try very
hard to be politically impartial.
31
106. In addition to her thankfulness to Richardson, Shannon Bacon has an inescapable
and continuing legal duty of loyalty which disqualifies her from acting adversely to him:
(A) In the San Juan case, she would be acting against her client Bill Richardson if she
voted in favor of the San Juan acequias.
(B) In the pay to play litigation, she would be voting against her client if she voted to
enforce the Fraud Against Taxpayers Act for the plaintiffs. That would expose Richardson’s
participation in the pay to play scheme, subjecting him to civil liability.
(C) In the disciplinary proceedings, allowing Marshall to continue to practice law would
be a threat to Bill Richardson. There is no statute of limitations that protects Richardson under
the Fraud Against Taxpayers Act. By voting to suspend Marshall, Justice Bacon shielded
Richardson from being deposed under oath, which would pose a considerable risk for him.
107. Justice Bacon is violating the Governmental Conduct Act. The Act applies to judicial
employees, and it mandates “full disclosure of real or potential conflicts of interest.” NMSA §
10-16-1 et seq.
G. CAUSES OF ACTION
1. FIRST AMENDMENT
108. The new rules and the sanctions violate the First Amendment, including its provisions
protecting free speech, the freedom of the press, the right to petition government, and the right to
transmit and receive information.
2. PROCEDURAL DUE PROCESS
109. The new rules and the sanctions violate the protections of procedural due process under
the Fifth and Fourteenth Amendments.
32
3. IMPARTIAL TRIBUNAL
110. The new rules and the sanctions infringe the constitutional right to an impartial tribunal or
judge, whose impartiality cannot reasonably be questioned,
4. JUDICIAL DISCLOSURE AND RECUSAL
111. The actions and omissions described in this complaint violate the right to full judicial
disclosure of information relevant to possible recusal or disqualification, as required by the
Constitution, Rule 21-211, 28 U.S.C. § 144, and case law.
5. SUPREMACY CLAUSE
112. The new rules and sanctions expressly repudiate or fail to enforce the Constitution and
laws of the United States, including the decisions of the United States Supreme Court cited in
this complaint, in violation of the Supremacy Clause in Article VI of the United States
Constitution and Article II, section 1 of the New Mexico Constitution.
6. SIXTH AMENDMENT
113. The new rules and sanctions violate the protections provided by the Sixth Amendment for
criminal or quasi-criminal cases, including the confrontation and ex post facto clauses.
7. EX POST FACTO LAWS
114. The new rules and sanctions violate the prohibition against ex post facto laws in Article I,
section 9 and section 10 of the United States Constitution.
8. EQUAL PROTECTION
115. The new rules and the sanctions deprive Plaintiff and other persons of the equal
protection of the laws, in violation of the Fifth and Fourteenth Amendments.
33
9. RIGHT TO POLITICAL ASSOCIATION, AFFILIATION, AND EXPRESSION
116. The new rules and the sanctions have been and will be used to discriminate against those
who do not support the Democratic Party and Democratic judicial candidates, in violation of the
constitutional rights of political association, affiliation, and expression.
10. EXCESSIVE FINES
117. Plaintiff has been subjected to excessive fines in violation of the Eighth Amendment.
11. SUBSTANTIVE DUE PROCESS
118. The new rules and the sanctions are “arbitrary and conscience-shocking, in a
constitutional sense.” Collins v. City of Harker Heights, 503 U.S. 115, 128 (1992).
12. CONSPIRACY TO VIOLATE CIVIL RIGHTS
119. The defendants conspired with other persons inside and outside of state government to
deprive plaintiff and others of civil rights, in violation of 42 U.S.C. § 1985.
13. FAILURE TO PREVENT CONSPIRACY
120. The defendants and others neglected or refused to prevent or aid in preventing the wrongs
described in this complaint, in violation of 42 U.S.C. § 1986.
14. JURY TRIAL
121. The sanctions and the new rules infringe the right to jury trial under the laws of the
United States and New Mexico.
H. PRAYER FOR RELIEF
123. Plaintiff respectfully asks for declaratory and injunctive relief to remedy the violations
described in this complaint, including but not limited to:
(A) Declaring that the new rules and the sanctions issued on March 13 and 16, 2023 violate the
34
First Amendment and the due process clause of the Fifth Amendment, the other laws described in
this complaint, and controlling precedents from the Supreme Court of the United States;
(B) Declaring that truth is always a defense to any action for defamation;
(C) Declaring that the ban on “after acquired evidence” is a clear violation of due process;
(D) Issuing preliminary and permanent injunctions against enforcement of the new rules and
sanctions, including injunctions against the defendants Bacon, Thomas, Taylor, and Gagne;
(E) Declaring that the sanctions against plaintiff violate the First Amendment and the due
process clause of the Fifth Amendment, and the other laws described in this complaint;
(F) Vacating the sanctions against plaintiff, including the license suspension and fines;
(G) Enjoining the State Engineer and the Director of the Interstate Stream Commission from
engaging in ex parte communications with judges except in compliance with Rule 21-209, and
only if they give advance notice and an opportunity to participate to other parties;
(H) Ordering the State Engineer and Director of the Interstate Stream Commission to report to
the Court within 60 days with proposals to eliminate the conflict of interest that exists when the
OSE and ISC are paying large sums of money to Judge Wechsler’s immediate family;
(I) Declaring that delaying the adjudication of water rights for decades is a violation of the due
process right to be heard at a reasonable time and in a reasonable manner;
(J) Expediting “the just speedy, and inexpensive determination” of this action, FRCP 1 and 57;
(K) Awarding costs and attorneys fees pursuant to applicable laws, but not damages; and
(L) Granting such other and further relief as may be appropriate, pursuant to FRCP 54(c),
whether or not such relief has been specifically requested.
35
3""'2. ~---Q J ~ ~c!l ). ~

~ -ik.-1,-.._ .0~~~..:. ~ :s g,
V--~~
v--~~
Victor R. Marshall, pro se \
12509 Oakland NE
Albuquerque NM 87122
505-332-9400
victor@vrmarshall.com
DECLARATION UNDER PENALTY OF PERJURY
The undersigned declares under penalty of perjury that he is the plaintiff in the above action, that
he has read the above first amended complaint and that the information contained therein is true
and correct. 28 U.S.C. Sec. 1621.
Executed at Albuquerque, New Mexico on June 27, 2023.
v~
c'
36
Case 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23 Page 1 of 305
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
VICTOR R. MARSHALL,
Plaintiff,
v. No. 1:23-cv-00494-JFR
C. SHANNON BACON, Chief Justice

of the Supreme Court of New Mexico;
MIKE HAMMAN, State Engineer of the State of New Mexico;
ROLF SCHMIDT-PETERSEN, Director of the New Mexico
Interstate Stream Commission;
HOWARD THOMAS, Chair of the Disciplinary Board of New Mexico;
ANNE L. TAYLOR, Chief Disciplinary Counsel for the Disciplinary Board;
JANE GAGNE, Assistant Disciplinary Counsel for the Disciplinary Board;
Defendants,
in their official capacities only.
LIST OF EXHIBITS TO FIRST AMENDED COMPLAINT
Exhibit 1 Motion To Allow After-Acquired Evidence with Exhibits 12/17/2021, with

! DNA legal memo to Tribal Council on Navajo water rights;
! payments to Jeffrey Wechsler law firm from State Engineer;
! Contract No. 21998 for $3,060,000 paid by State Engineer;
! Bruce Black’s lawyer contracts with UNM.
Exhibit 2 Order Denying Motion To Allow After-Acquired Evidence 1/11/2023.
Exhibit 3 Bustamante Purchase Order and Payment Record – $108,000.
Exhibit 4 Bustamante email about pro tem contract and preserving his retirement pay.
Exhibit 5 Wechsler Designation Order with $97.41 hourly rate, 7/13/2017.
Exhibit 6 Victor R. Marshall CV.
Exhibit 7 Motion and Brief for Recusal of Bacon in Vanderbilt case 10/26/2020, with
! Marshall letter 9/21/2020 to Clerk about recusal; and
! Marshall affidavit about Bacon’s work as a lawyer for Bill Richardson.
Exhibit 8 Bacon Recusal in Vanderbilt case, 2/22/2022.
Exhibit 9 Wechsler testimony about his selection as water judge by Richard Bosson,
Steve Snyder, and Celina Jones.
Exhibit 10 Photo of mass meeting of defendants at Farmington Fairgrounds, 10/3/2011.
Exhibit 11 Notice of Constitutional Defect in Service List, 10/31/2011.
Exhibit 12 Snyder email 10/31/2011 to Celina Jones re Notice of Constitutional Defect.
Exhibit 13 Snyder withdrawal as Special Master, 11/2/2011.
Exhibit 14 Emergency Motion and Brief to Enforce Rule 21-211, 2/26/2018.
Exhibit 15 Tribal Council Resolutions ACJN-119-68 and CJN-56-70 asserting control over
DNA.
Exhibit 16 Congressional Hearings in Window Rock, AZ on 1/3/1972, with testimony and

filings by DNA.
Exhibit 17 Partial transcript of Supreme Court Hearing on May 25, 2022.
Exhibit 18 Videotape of Supreme Court Hearing on May 25, 2022 (will be provided later).
Exhibit 19 Aldus audio recordings (will be provided later).
Exhibit 20 OSE Status Report on Completing the San Juan Adjudication – in 200 years.
Exhibit 21 Wechsler Deposition – “It never occurred to me.”
Exhibit 22 DNA IN ACTION NEWSLETTER, Navajos Are Directing DNA, March 1970.
Exhibit 23 Legislative Council Service arguments for and against 1978 constitutional
amendment for appointment of pro tem judges to the district courts.
Exhibit 24 Paul Fyfe bio from nmcourts.gov. Paul Fyfe is an ex-DNA lawyer like James
Wechsler. Fyfe worked as a permanent law clerk for Bruce Black, and as Chief
Staff Attorney for the New Mexico Court of Appeals.
Exhibit 25 Barry Massey, Lawyers Gave $36,465 to Gov. Sutin lawyers (including Shannon
Bacon) gave contributions to Richardson’s campaign and the law firm received at
least $750,000 from the Richardson administration.
Exhibit 26 Itemized receipts Bacon contribution to Richardson campaign for president.
Exhibit 27 Greg Fouratt letter.

Filed
Case 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23 Page Supreme
4 of 305Court of New Mexico
12/17/2021 4:16 PM
Office of the Clerk
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
In the Matter of
VICTOR R. MARSHALL, ESQ. No. S-1-SC-37698
An Attorney Licensed to
Practice Law Before the Courts
of the State of New Mexico
MOTION TO ALLOW “AFTER-ACQUIRED EVIDENCE”
Counsel for Respondent respectfully moves the Court to allow “after-
acquired evidence” to be considered at the disciplinary hearing scheduled for
January 12, 2022, including the exhibits filed herewith. Undersigned counsel
has conferred with opposing counsel (Jane Gagne). Ms. Gagne opposes this
motion.
The reason for this Motion involves rulings by the Hearing Committee
and the Board Panel in this matter. Specifically, during the disciplinary
proceedings in this case, disciplinary counsel urged the Disciplinary
Committee not to allow Respondent and his counsel to present so-called
“after-acquired evidence,” meaning evidence uncovered after February -
March 2018, the date of the alleged violations. [RP 158-63] The Disciplinary
Committee and the Board Panel accepted this novel argument against “after-
acquired evidence” and refused to consider the evidence collected by Mr.

Marshall and his counsel. [RP 922, Conclusion 4(A)]. To that end,
disciplinary counsel gathered evidence after the fact and used that “after-
acquired evidence” against Respondent. Some examples include: Disciplinary
Counsel Exhibit 16 [RP 292 FOF 10, RP 297 FOF 34]; Disciplinary Counsel
Exhibit 15 [RP 296 FOF 30]. The Board Panel based their decision on that
“after-acquired evidence,” while refusing to consider the contrary (after-
acquired), evidence gathered by Respondent and his counsel. [RP 922,
Conclusion 4(A)].
On another key issue, the disciplinary process ruled that DNA was not a
part of the Navajo Nation [RP 297 FOF 31], but Respondent discovered two
Tribal Council resolutions declaring that it was. [RP 832-33, 875-76].
In short, the Board Panel used “after-acquired evidence” to recommend
an onerous sanction for Respondent, while barring Respondent from
presenting “after acquired evidence” which disproves the disciplinary charges.
Based on this one-sided treatment of “after-acquired evidence”, the
Respondent is facing discipline for allegedly filing frivolous pleadings under
Rule 16-301 NMRA. However, Committee comment [2] to the Rule states in
relevant part:
The filing of an action or defense or similar action taken for a

client is not frivolous merely because the facts have not first been
fully substantiated or because the lawyer expects to develop vital

evidence only by discovery.
In support of this motion, counsel submits herewith the documents
marked as Exhibits 6,7,8 and 11, which were submitted in Clark et al. v.
Haaland et al., Case No. 1:21-cv-01091 (D.N.M. Nov. 12, 2021) [Doc. 1, 13].
These documents only serve to bolster Respondent’s initial filings in the
Court of Appeals, and demonstrate that his actions were justified under the
Rules of Professional Conduct. Specifically, the documents show that:
● While Judge Wechsler worked at DNA, DNA provided legal counsel
and litigation advice to the Navajo Tribal Counsel about Navajo water claims
to the San Juan River. Exhibit 6.
● While Judge Wechsler has been presiding over the San Juan
adjudication, one of the parties (the State of New Mexico Office of State
Engineer), contracted with his son’s law firm to pay it millions of dollars for
legal work involving water issues. Exhibits 7, 8.
● While retired Judge Black wrote the opinion in the Court of Appeals,
2018-NMCA-053, the State of New Mexico was paying him as a lawyer and
investigator on matters at the University of New Mexico. Exhibit 11.
None of these facts were disclosed to the defendants in the San Juan
litigation, or to Respondent. This evidence was only uncovered after March

2018, while Respondent and his counsel were defending against the
disciplinary charges brought against him. However, under the Board Panel’s
rationale, these facts are regarded as irrelevant and inadmissible because they
are “after-acquired evidence.”
This Court’s ruling on this important question will clarify the requisite
standard in disciplinary proceedings involving the content of legal pleadings.
Additionally, the Board Panel’s view of after-acquired evidence is an issue
which is a matter of substantial public interest to all attorneys who practice in
New Mexico, and to the clients who hire attorneys to act as their advocates.
See Rule 17-316(A)(2)(b) and (d) NMRA. Therefore, Respondent respectfully
asks this Court to consider and decide these questions so that Respondent and
his counsel know how to proceed at the January 12, 2022 hearing.
Accordingly, Respondent respectfully moves the Court to consider
“after-acquired evidence” in this disciplinary matter, including but not limited
to, the documents filed herewith.
Respectfully Submitted by:
The Baker Law Group
/s/Jeffrey L. Baker
Jeffrey L. Baker
P.O. 35489
Albuquerque, NM 87176
(505)263-2566
jeff@thebakerlawgroup.com
renni@thebakerlawgroup.com
Attorneys for Respondent
CERTIFICATE OF SERVICE:
I hereby certify that a copy of the foregoing was served on counsel of record
via the Tylerhost system on this 17th day of December, 2021.
/s/Jeffrey L. Baker
Jeffrey L. Baker
LAW OFFICES OF
/::-=-....-...
/::-=-...."
LEO HAVEN DINEBEIINA NAHIILNA BE AGADITAHE
~X~
~x~
{ . DIRECTOR
DNA-
DNA - A LEGAL SERVicES
SERVJCES PROGRAM
OJ RECTOR, NAVAJO ~AW
01
"---
\...._ _/
- /.
.
PETERSON ZAH
POST OFFICE BOX THREE HUNDRED SIX DEVELOPMENT UNIT
WINDOW ROCK,ARIZONA 96515

DEPUTY DIRECTOR :oo:x~)(oceoa:j)(OKOi-
:OO:X~X~Cr3CJiOCOKOi-
TE~EPHONE [602J
[602] 871-4151 ATToRNEY
ATTORNEY
RECEIVED
February 4, 1971
f'.'{;,J·:Ll TRi8E
JHE f'_:XJ-30 TRiSE
J..EGAL D~:' -. "TSH
The Honorable Peter MacDonald

Chairman of the Navajo Tribal Council
The Navajo Tribe
Window Rock, Arizona 86515
Dear Chairman MacDonald:
Enclosed is a copy of DNA's research on the Navajo
Tribe's W·ater
w·ater Rights in the Colorado River basin which
was prepared sometime during the latter part of 1968
and early months of 1969.
1969 . .·This
This report has been revised
_the contents are the same with very
once, but most of .the
little changes. .·
No further action as been made on the water r~ghts case
recently.
This is for your information regarding the Navajo
Tribe's Water Rights.
LH/lam
LH/1am
Enclosure
' . ,'•
-' THE. NAVAJO

I .
TRIBE'S
-
WATER RIGHTS IN · ~E
COLORADO RIVER MSIN
Table of ·contents
Facts . . .. . ... . . . . . . • • . :- . • •
I
..
Legal Questions . . . . . . . . . .. . .
~
,
.J . . .. . ..• • .4
Conclusions • ·• • ; • ·• • • • • • • • • .•.• !
j
I
• • ...
I
• •..
Discussion • • • • .• ·• • • ..... .o • • • • • • [. · • •: • • • • • 6
. . . :... I:.- I
1. The Reser{red Rights Doctrine and the Na~ajo Tribe • 6

I ,
2. The Measure of the Navajos' Claim ~~

I
.•• -
. ' ''
3. ·The·' Interpr~.tation of the Decembexj ll,· 1968 1
Triba 1 Col1ncil Resolution _(CD-108'i68) •· • • • • • • 20

1
. . . ·1. . 1
4. The s;igni~icance'of.the Tribe's wJiver b~ its·

Reserved wat~r Rights Claim • • • I. .•... : . .. . . . .• 30 .
. ~. I
A. ·TJle Value of the-Tribe's t'ITate~ Righ:ts ·• • • • • 30

' . . i '
-. ·. ; . . . - I I • •
B. ·'!he Consideration .for the Waiver • ;. ~ • • · • • 33

. . !. . . . . i ' -
5. H. R. 103S4 - The· Antelope Point ~ill .; ;. • • • • .36
' " . I I
6. The. _tnter]?retation of the Resolut.~on Introduced

May 28, l969 and the' Resolution I~trod9ced· and
Enacted J~ne. 3, 1969 • • • .- • • • I· .•..•.••.• · .39
I .
'
7~ Remedies ·• • • •• • • • • • • • • •I • • • • • 43
II -
s. conclusion . . . . .. . .. . . . . l . I
. '. . • • • • 46
I
·I
'
·'
-l
THE NP.VAJO TRIBE I s V'7P~TER RIGHTS IN THE

. COLORADO RIVER BASIN
Facts c
By Treaty of June 1, 1868,1 the United States creatc.Q
a Reserv.ation· for_ the Navajo Indians. The. territory reserved
consisted of a ~e1atively small tract in eastern Arizona and
. we:stern New Mexico which had been. part o.f the Navajos 1 much
lazoger ancestral lands~ 2 By later executive and legislative
actions the Reservation in A!:'i2!ona, New Mexico.and Utah was en-
larged. The last additio~s were .mqde on June 14, 1934 when
c~:myress enacted a ~aw conveying tracts K, M, and 0 {See Map)
to ·the Tribe.
"'\ 'lbe enti=c !~·'i·;i~lj~ Reser-vation lies within the_ Co¢orado

'
River Basin (Figura .C:} • . T"nis area is the geographic region· from
which all water drains· into the ~olorado River· on. its way to
Mexico and the Gulf of Ci:llifCJrnia. Po.rtions of 'the Colorado and
. San Juan .Rivers form the northern and western bounqar.ies on the
Reservation. The !Little.

. .
. colorado River flows.into
. . the Colorado
from the south~Je.stern parts of the Reservation •.
The colorado R:tv.er system drains 24~, 000. square miles
of larid in the United States (and an additional

' . 2,000 squa:re miles .
The river itself is some 1,300 miles long. Average
f!ow in the main channel of the Colorado River.
,:r
I
I
\
1 15 stat. 667.
'- ....
2. · See Map (Figure 1). showing the creation and later additions to
..J . the N~:vajo . Reservation •
Average flow in the main channel of :the Colorado River

at Lee·Ferry, the dividing ppint between the Upper anq Lower
-colorado-River Basins, for the period 1911...;196'0 averaged 13,017

t
!.-
a~re-feet a year.3
i
j :
· Me~ t of the· land wi tl";in the 2 5, 000 s:quare~ mile Navajo
I
P..ese:-:-vatiori is arid.. There ·are no water sources wi,t.l!in the
Reservation sufficient to. sustain agricultural, ,

inu~strial
I .
or
of::'1~:= devc1._opment. More-:>v~r, the groundwater lf3t.:pplt· is quite

!
likely inadequate to meet fore:::ee.a~le doulesti9 nee~s of the
. '
burgeoning Navaj_o Reservation population. Hence, the only source
I . ' •
of subst~"'itial water supply is the mainstream bf th~ Colorado
River and its tributariea - the San Juan and Ilit.tle· (;olorado Rivers.
I 1
water h!as·b~en _a major ·issue in the :southwest·ever since

. I ·.._.,. ____ -"'
man began to occupy the· largely arid or semi-arid area.

, I
Scarcity
' '
of water forced the Hohokam· Indians as long ago as 2 ·, 000 years to
erect irrigation ·canals from-distant rivers to their homes near

i
present-day Phoenix, ~.rizona. 4 i
. i '
with the rapid increase in. population in 'the 20th century,
' .
the states of the Colorado River Basin have argued with each other, j '
I
sometimes bitterly, over the distribution of the wa·ter supply. ·The
fear of the Upper Basin:states that the more rapid :t,ower Basin
3 Meyers, Charles J., Tlle Colorado-River, St~nfor~ Law Review, Vol.

19, Nos. 1 & 2, Nov. 1966 -Jan. 1967, pp. ;1-2. An acre-foot of
water- is that amount necess'ary to cover
.
one acre one foot in depth.-·'-,, \
'
It is equal to 325,850 gallons. Black's ~aw Dictionary 42 (4th '~ /
ed. 1951). · ,
4 Arizona v. California, 373 u.. s. 546, 552 {1963) .. -~
2 I
i
i,_
'
development would eventually depri,ve

depri_ve them of all Colorado River.
water. led to the-

the· 1922 Colorado River Comp'act
Corop·act in which the states
·apportioned
- apportioned the Basinls
Basin's waters between the Upper Basin .States
_States
(Colorado, Utah, W¥oming,

w¥ominq, New l-1exico
r-1ex:Lco arid Arizona) and the lower
Basin states (Nevada, California and Arizona).5 In. 1948 the Uppe~
Basin.states reached agreement as

Basin,states to the apportionment among them-
.s~lves
,s~lves of the Upper Bas'in
Bas·in IS
• s wate.rs. Under 1;:he tet'ms
te:t·ms of the Upper
cx.. lol:a ~o River compact,6

(X tl1e states except ~,.:l:izona
Compact,6 each of tlle ~..:t:izona is .'
ent.itl~::1 to a certain p~l:'centage'of

p~l:'centage· of ·the consttmpt.ive ~se of water
. the consllmpt.ive
.~·~ .,,:.·:;.;i!
l"3gr-,11y in.·~ilable,
l"3q'r,lly in.•~ilable 1 ..T",-hile -.p,.:d~i~na,'
,.,·hile ·.p.•:d'!:,~na,· ,primarily a LO~I;'l:r.
Lo~1;1:r. Basin
Eas:i.n state,
,... .
of" 50 c oao.
~
.· g~!:.~ ~:~:-= ·':::~2~d,

~:~:03 ~:~2~d, a~j..'~t
a~1.:~t 6f'"50cOJO. z·c=e;,;.;fee~·.of 'f...:a'~~:t:.:--J?~:-·,year.
z·c=e;';';fee~·.o'f'f.;::a'~~:t:,:-,J?~:-·, year.
../ ' clai;:ns, A~i::cna de'i?i5:':,C

de·i;;i.s:':,d ~~ massive project for use of t.~e water
once ?.cguired.
e:.cguired. The project~
pr-oject~ call.adthe central Ari~ona Project
project
.
. '' .
tiw.:.: ized by Congre~
(CAP) , has been a9 tJ,w.:.:
.· (CAP), congre~ s 77 ,but appropriation of the
·federal
'federal monies requ.:1_r~d
reqlJj_r~d for the }luge
huge water works and systems
systeii'aS is
s t:~ 11 p.and~ng.
p'3nd~ng.
The core of
Clf the C;\P is a series of pipes and canals
from Lak~ .EaV3SU

Eavasu on tli.e Lo;o;er
LO'W'ler Basin to the Phoenix CL.'"1d
'ld Tucson
areas. parkF.!l.'·• s e~:eva,tion

,Sil1ce l?arkF.!l.'
.Sil1ce e~:eva. tion is lo't.;er.
lo~.;er. tha:l phoenix's the ~later
tha:1 Phoenix's ~rater
.' is· tc ':!!";:-,.s,truct

··is- ':!!";:.,.s.truct a coal·-:~ueled steam generating power plant at Page
page
-----------------
5 A.R~S~-§45-571
A.R~S~·§45-571
6 A.P...s., S45
A.P...S., 545 ·-581:
--581: Ci.lso fOllnd at 63 Stat~ 31 (1949).
Ci,lso fottnd
·1·
'7' 82 St'at~
St-at~ 885, U 0 S 3 CoAo §§1501 ~. sego (Supp. 19';9)"
885 1 43 UoS3CoAO l9,;9)"
3
on the Upper Basin and transmit the electricity to Parker

parker to pump
the water from Lake Havasu to Central Arizona. Arizona intends to
use its 50,000 annual acre-feet of Upper Basin.

Basin, water to help produce
the power while it -uses all of .:its Lower 2 .a

Basin water, some 2.8
million annual acre-feet, :Eor purposes.

for farming or other productive purposes,
in central Arizona.
On December 11, 1968, the Navajo Tribal Council enacted
No• CD-108;..68,
Re.solution No. Cn-10S:"68, which is attached as E:mibit 1. The
Resolution marked Exhibit 2 was introduced on ·May

'May 28, 1969 and tabled
on May 29. On .June 3:, 196Sl,

1965l, the Resolution marked 'Exhibit 3 was
introduced, amended on the floor, and adopted. The purpose of
this memorandum is to analyze those Resolutions in light of
the·Navajo Indian Tribe.

existing law defining the water rights of the-Navajo
Legal Questions:
1. Does the Navajo Tribe of Indians have a claim to the
River,. tne
waters of the Colorado River" san .•Jaan River,. the. Little·_
the San'LJaan
Colorado River and their tributaries?
2. so,. what is the measure of the extent of the Tribe'

If so,-
claim?
3. If the Tribe does have a claim, what is the effect
1968 Resolution (CD-IOa-6al

of the December 11, 196a (CD-108-68) of the Tribal Council
council
entitled "Approving the allocation of 34,100 acre-feet of water from
the Upper Colorado River Basin and promisin9toli~it·the

promising to li~it·the Navajo
Tribe's claim for water from the ·Upper

'Upper Colorado River Basin to
50,000 acre-fee~ per year"?

4
._, ..
4. Has the Tribe, by its Resolution-of June-3, 1969,
successfully·remedied any adverse effect of Resolution CD-108-68?
5. If the effect of CD-108-68 is adverse and if the
Resolqtion of June 3, 1969 did not_remedy that adverse effect,
what can the Tribe do to protect· its claim?
Conclusions:
1. Yes. The Navajo Tribe of Indians has a claim to the
waters of the Colorado River, the San Juan River, the Little
l'-'• • .
COlorado River and their tributaries under the 11

Reserved Rights"
doctrine announced in Winters v. United States, 207 u. s. 564

(1908), and most recently appl_ied in Ari·zona v. California, 373
\
··~-·j u. s. 546 (1963).
2. The measure of the extent of the Tribe's claim is

the amciunt of water ·needed to irrigate all the "practicably ir-
rigable acreage on the [Reservation]." ~rizona v. California.
373 u. s. 546, at 600 (1963). However, ·consumptive use of the
water is not limited to ·agriculture.
3 •. The Resolution of December 11, 1968 (CD-108-68) by
its workinq and context waives tl1e Tribe's claim to all water
of the Upper_Basin which includes the Colorado River, the San
Juan River_, and their tribut~ries.
4. The Tribe, by its Resolution of June 3, 1969, has

.( not remedied the waiver effects of Resolution CD-108-68, but has
5
'
. • • I
made that waiver of indefinite rather than lkmkted duration.
I
5. The Tribe's legal recourse is a\ quiet .title action i ~,--\
! '
' i
agai1:1st a;l;l parties cl~iming water_s.. ·from the Colorado River _sy~tem
.. . I
I
I
to have the Tribe's ri~hts fixed by court deere~.
Discussion:
I
I
1. The Reserved Rights Doctrine and· the ~Tavajo T:!:ibe:
I . ,
The water rights of Indicins living ~n· ·federally-crea_ted
!
reservations are e;tt~nsive. Already

-
the tiny
.
Lclwer
I
Colorado
, .
River
.
. I , . .
Basin tribes have been awarded 895,496 annnual cicre-feet of main
' .
i
' '
I
channel Colorado River·water'whi1e· the ~ntire S~ate o~ Arizona
I ..
i .'
was awarded only 2 .a million ~mnua:l acre-feet idI the 'same
.
actioo.
·.
a
... , . r
Indians' · cl~lims to water rest primariil_y o~ rights a~ tach-·
ing to the reservation ·lands they o·ccupy. · Thesei are not restricted
I . . . .
to "'aters flowing through or c~ntiguous

.
to ~he rkservations,
I
·but ~
I
extend to the sources of the·waters as well. This means that Indian
, I ~.
reservations have priority of the use. of waters ~n· ~atersheds
I
adjacent to their reserJations and. can thus - ~

deprl~~. up~tream ~-nd
- ' t • '. v
. I ,._
downstream users including states of a.ll w9ters except the surplus
i '
after Indian needs are fulfilled. I
~· /
I
Moreoyer, water·rights are property rights.which"cannot
1 . . '
be appropriated without .just

\
compensation under ~h-~
!
F:i!.fth and
·~ j
I
a- Arizona v. California,, 376 U.S. 340, 342, 344-45~ (1964) 1
(decree)·.
.6 '
'i
!
As summed u~ by Charles i}. Meyers, r~served wc:lter rights
of Indians· on Reservaticms- include these additioral a~pects:

.I . .~ .
1. The pribrity date is the date th!e. reservation is
created~ State-created water ·rights in existence
before ~his date are superior!. those 'arising
thereaf~er are subordinate.
I I· '
2. The reshr-'i7ed ,
right, . unlike-state-crea:ted I .
appropria-
ti,.Je ri 1;;rh~:s, does not Cl.epsnd t:\pon _div:::;rsion from
the strl=cm and appl_icat.ion to l.~~n.::.flqi;:=-1 use. The
. i..::J • ,_t . '1 .. '
-reserve.u ar~ses w 1en ·cr.e J:'eser'iJ<l..J.on J.S
J.:. • •
:r::.g~~
es-t;.abliieh~:!d even. thongh ·1:h3 -v,at~r. r."i.s·ht is net

~. . ~,... • C'1 .. . ::: f"P~
e~ .. e .. ~::t ... C'-1
...,. c..::~.
·f. --= a .... _.:. t1..~1-e...-~e ...~ ).--~+.
,::;r.'\_ :.;.~I ."'t".. 1.1 ·c~~l.s
• 1:.. • ~ t_
J."e8p-c
•
t 11e r .v;;1.. '1-••: J..s • 1

~··
.:..l.:-;.:3 a r .!.pc:.:L·l.aH
_. • • 't
):".'!..:;!.o.l .. ,' !11 t.1.:ne ' of
. , •- . •'t • . 1 '. I • , . • ,_, t
sno;:t ".igc 1 no~,--:e·-1.:-=r, 1 . ss .u.L.:U:·.e i e :t :s..pa::).an r1.g.u , ·
• ,
7
f'~i.: :=..t. ~~lor;>:~ not share· ~he· a·~mil~'l:ll0 :.,:;:,.pplY,• p~·o
rcta b:.;.t :t'c1t.!v:r takes J.t.a p.ls.c9i on tha prm?:::-l.ty
schedtl}.;5 and receives water~~~.:-.,e:id of~ all z:i<1h.ts of
la·::er ..:1at~.e. .· i · -
-As. me. y be in.fe~ red from the s t~ itr;:ffiGn abc":e,. the

! h
. f~dE:raf reserved :r.:j.ght lii~€d not.: b.= c~eat~d or
I '.
•
p?"o~- .... J.·s·,.,,.-.
- · • --- - ~'-A
.;n a--ccorc'l-
- #c--.....·c~~ -wi'-'1
• t=- . , -1""•·•
- . . ., ~,..t·~·t.""' ;-·'IV • ?;.~.o·t
J.'~.
only
-
cJ.c:2s its c:Eea·ticn not 0.8p"'-.:::l.d on: ~i"';en::ion of water

and _:=:.pl~lic?.'ti\.m of it to ·:)ena:fi[ci:;:l ~4~er but the
right ~.ca::; n~.,.,t., depenJ. u.p01.1 a fi11 iiig ~dth tr.e state
wa.ter ~-;~;ncy o:.· upon ::.·Gcot·c.i.irz~r !of t.h~. claim. And
it is ~:1t. si.~:i.1j~'.lc:t to state l~:r:vS: Oi.'l- fprf~it.iJ.ne and
I
I
I
.4. 'n1·~ ~t;;f!ll~.:.ity of \v3ter to .be enjo:rt=:d :r!nd.er a reserved

right. ::i.G rr.:=Rsu:-.:e•~ by the q:::_,'ln tJit.y n~ce.ssary to
1
fulf:i.l,lI i:he· p~l:<.:·po.ses · · - ,

c-f· the i:'3~0r<.~ation8 both at 1 ' ,
th~ prt:r:o;r:t t:i.rr·ean.::l·in the fn-~r.::re~; ~_r:i.z<:mE-.Y..•

_
._... .......-. --:----:--"'·- qu-=-.11tifiea this amot~nt· ··for the .Ir.dian
C3i1.~"o::.·~~:.a . -. ~
res::r;:;.:t::i·~ns c.:..~ the :lrr.o~l!"lt o£ \;,?..le:r ·nece~snry to

, ·• I • • ·, . .I , . . - . ,
l.:t:.r.·:!.q::-..!!+.~ al.'. th.e ~rr~gaLle lrm¢1 en .each reservat1.on.
Th?.i:3. c):..~-t':lc~ ty ~·ep:r:e~~ents for tljlc.5e :>:"eeervations the
amou~i:! c.f "Wa+. .:.;r,tl-;;ey are ·enti·i.·.l~d t.o for all time·
..t1
.·~·L~~~:·-~
(.. ·~···''~l•" .0.!..
·.:-: .····'·
. - . . 1-~c t" ~ 'Y'c,:: ~L.! ... ~·~are
.z...>.:>., ' !'1 ........... c;:c,· ... l. ..:..l.f •• :.>
!)· ,.. ..
•
e·'"'iay: od
11.•.. g-~
1-"--.······:.::.-.-.: •• -.o:t
• ···:""/'~'·~ .:.- ·"'•-"
1
· i•• ... .;r.~.o,c:1··., •.. ,.,·1,··
•'~~c·-<-•- • .1..-..•~·----~' o
-r.•")-'· .~.; •• ,;..
c:· .f. ........ ·· -=o ~·r··.:1""'''1
~- ,u,.u.l ,.,.,.,erva
r,.;;;,., ·-·
/•
11 Mey~rs, ~'~2~· nqte 3, at 65-66.

I
8
<t.,. .;~ ·• ~
The legal theory on which the· grant of sueh enormous
and valuabie ·rights is based derives from the "~eserved Rights 11 .
Doctrine first declared in Winters v. United States, 12 · and most I
recently, applied in Arizona v. CalifolJlia. 13. These ca~es hold. that
water as well as. land was raseryed fo~ the Indians· when their
reservations were establi·shad or enlarged )Jeqaus~ of the Indian~ •
need for. great 'qua':_ltit.ies of ~ater to develop their reservations

. .
.·in the. peaceful and pastoral"manner intended by the Government.·
----4,Mo-- ·. .
in ,the Winters case... th·e United States, on behalf of the
Indians of the Fo;rt Belknapindian Reservation~ brollqht.suit
to enj.oin upstream users from interfering with the flow of the
/ \ . Milk·River to the.reservation. the Supreme court held that, when

\., .
"'-~!
the. Indians gave up ·their rights to the.i:r fol!mer lands in exchange
. ·for the .. a;rid, · unirrigateci land of the rese_rvation, sufficient water

. '
was r'eserved from the Milk' R~ ver .to enable the Indians II to become
. .
a pastoral· and civilized peopie. "' . '!be· court furth~r held that th~
Indians• rights to ·the use of this water could not be diminished
by any sUbs~quently-el:eated ri.gh.ts und~r state water law. The lOWSl:
court decree .9ranting tb~· rec;t'uest.ed injunction was a_ffirmed.
· ·12 201 u.s.· 564 (1908).

13 '373 u.s. 546 (1963) •.
9
In A~izona v. California the Supreme Court, referring

·I
to the situatidln of the Lower Colorado River tribes~ cfurther

I
elaborated on the ratiopale behind the Reserved. :Rights doctrine:
Most of the land in these reservations is and

always has been arid. If the water nec~ssary
. to sastain life is to be. had, it must come from
the Colorado River or its tributaries. ~t can
be said without overstatement that'when _the Indians
were put on these reservations they were-not
considered to be located in the most desirable
area of the Nation. · It is impo·ssiJ?le to believe
that when icongress created the gre~t co~orado
River Indian Reservation and when' ~e E~ecutive
Department of this Nation created ~he o1;:her
resex:vatidns they were unaware tha~ ·most: -of the
lands were of the desert kind - hot, scorching
sandsMand that water from the river would be
essential to.the life of the Indian people and
to the a::.1imals they· hunted and the, crops they
raised.l 4 . i '
I
i ,1"' """'-.
As interpreted by ~~e courts and a~ticu~ated by a legal
scholar and water expert, Charles J. Meyers, "1he reserved rights
doctrine holds that,- Ut;:JOn the cre~tion _of. a federal ~eservation

I '
on the .pt1blic domain-whether by treat?.J ,legisla;tion,: or executive

' .. . "I I •
order~the. reservation ~as appurtenant to it the/ riqh_~ to divert
as much water from the. streams within or border inq upon it as 1
necessary to serve the purposes for which the r~eservation was

c~eated."15
i
The.· ~eserved Rights· doctrine -has 1een interpreted in
two somewhat differing ways. As enunciated in.:the ~ters case,
... .. ,. ,. .. :
' .
•. ,...
... . ~
-~
14
15
-.
Ibid at-598-99
~eyers, supra note 3, at 65
10
·' ..
~-
~-- . ·; \ ..
."\, ....
Case 1:23-cv-00494-GBW-JFR Document

::'::.-..- 8-1 Filed 06/27/23 Page 20 of 305
the doctrine stands for the proposition that, on making a treaty

(r--~
( · with. the United .States government, 'the Indians themselves reserved

\..______)
for their own use sufficient water to make their reservations
praductive. Thus, "when the Indians made the treaty granting
rights to the United. States-, they, reserved the right to use the
wahers of Milk River, at least to an extent reasonably necessary
to ·irrigate their lands. The right so reserved continues to exist
against the Unite.d states and its grantees, as well as against· the
state and to grantees."l6
The Second in.terpretation o'f the Reserved Rights doctrine
holds that when the United States created the_ various. Indian reserva-.
tions, it reserved the necessary water from the adjacent rivers and
..- -~....., -
1 ·, streams for those reserva_tions. Thus, in Arizona v. california,
\ ~
' .
11
(t}he Master found both· as a mattfi!er .. o4 fact and law that when
..
the United states created these reservations or adde_d to them,
it reserved not only land but also the use of enough water· from
the Colorado
. to irrigate the irrigable .portions of the
. rese_rved
.
lands. nl7 The Supreme Court went on to hold that II [\'1) e have no
doubt about the power of the United States •• ~ to reserve water
rights for its rese.rvations and _its_ f-roperty ... 11.:8 ·
'rhe original construction of the Reserved Rights doctrine
gives grea~er recognition. to tribal soyereignty •. Under this
........ ,..
16 Winters v. United-States, 143 Fed • 740 749 (9th cir. 1906),
.~ -~.
affirmed·, 210.7 u. s. 564 (1908).
'
r .'l.
\___./ / 17 373 u. s. at 596
18 Ibid at 598.
11
' ... ·-.;
P..;:-,.' • 8-1 Filed 06/27/23 Page 21 of 305
Colorado River 39 and Upper Colorado River40 Compacts explicitly
decline to affect Indian water cla-ims. The ~!avajo Tribe's.
· reserved water claim casts a cloud upon the water_ titles of every
state. If the Tribe- were to a·sser't its claim, it would eclipse
Arizona's 50,000 acre-feet allocation, and, worse; from the point
_of view of ··all the' Colorado River Basin states,. would place a
la~ge Navajo claim prior- to the states',- requiring curtailment

' .
of every state's allocation.41
Concerning Arizona's 50,000 Upper Basin Allocation,

. . ·. ~.
·Article VII ·of the Upper' Colorado River. Compact provides-:
The consumptive use of :water by the United Stat~s

11
of America or any of its· agenC'ies, instrumentalities

or wards shall be charged as a use by the s.tate _in
which the use is made .... n42_
39 A.R.S •. §45-571, Article VII.
40 A.R .. s. §45-581, Artic-le
41. §13 (b) of the Boulder. Canyon Project ·Act -(43 u.s.c. §617 L.
· (b) ) provides :
•rhe rights of the United states in. or to .waters of
T'ne Colorado River and its tributaries hmrJsoever
claim;d or acquired, as well as the rights of those
cla~ming under the ·united states, shall l?e subject
to and controlled by said Colorado River compact.
' . . . ' .
:However,- .the Colorado· Rive;r _Compact, in Article V!I, states:
"Nothing in this coinpact shall be construed a-s affecting the
obliga-tions of the U01i'ced
' ' .
Sta·tes
.
of America':~_;\o
. ;;
Indian Tribes~"
42 A.,R.s. §45-581. The Navajo _Tribe is a "ward" of the United

States. ynited States v. Kag~m~, 118 u. s. 375, 383-84
·(1886) 1 _Cheroltee Nation v. Georqia, 30 u.· S. {5 Pet.) 1,17.
.... 27
':
.I
·Article XIX provides, in relevant pax1t_, "Nothing in

i
this Compact shallbe construed as 11

(a) affec~ing -the obligations
• •· . ·: I
. .,j :.. 43 .
of the United States of America to In d 1.an Trl.~es... By v1.rtue.
I
i
of Winte!:'s and the modern reserved water righ~s doctrine, the ·
, I
Navajo Tribe has :a special claim to Colorado ~nd San Juan River
j
J
water, wholly-apart from and parallel to 1:he ~tate~· claims, with

I
i
priority dates ·of 1868 and 1984. But Arizona~ as a signa.tory to
I
the Upper Colorado River B~sin compact~ has a~reed 1 that any ~
.
. . . I
.'
Navajo Indian water use will proportionately fedu~e. its Compact
• ' I
' • I'
I '
allocation of SO, 000 :annu'al acre-feet. In other words, Arizona.

I
has agree.d ·to charge ·Navajo water use 'against! its

II
own upper basin'
' I
allocation. it has riot,·· and couid no~ have, agreed that Navajo
, . I.
1
water rights in the ~pper basin would b~ limited by that alloca- .-~--- \
1
1
I
-tion.44 I
. : ',
We have been told that Rep. wayne· As:pinall. (D-Colo.), I .

I
I I
Chairman of the House ··eommittee on .the Inter:i:o~ and Insular

. , I
Affairs, has made it clear. to the Department 1of In:terior and
·- . . . I :
Salt River Project ~at, unless a waiver of the Navajo ~ibe's
'
I
Upper Basin w_ater claim is obtained, he will [have rthe CAP
I
. j
legislation killed.45 Mr. 1-\spinall, of cour~e, i~ ~xceedingly
; l
; . i . j ' '
concerned about protecting the Upper Basin a+locations. ·The

I I
average annual main channel £low at Lee Ferr¥ is ~bOut i3,000,000
43 §45-SSl
AoR .. S .. /' -.. . .
. I r \
44 s~ note 32 supr~. l
45 conversation with Interior Department At~orney, May 13, 1969.
I,
.!
28
aere-feet. 46 By the terms of the colorado River Compact, the

/--~~--,
1
\ j
upper Basin is obligated ~deliver an average of 7.5 millioft
aere-feet to the Lower Basin at Lee Ferry. 47 Eaeh of the Upper
Basin states has water resource projects ih planning to use its
allocation. If the Navajo Tribe were to perfect any substantial
claim to upper Basin water# it would proportionately reduce the
allocat~ons of all Upper Basin state allocations and jeopardize

all Upper Basin water use projects.
'!hue, ~r~.:c~a ar.d the other Colo~do River Basin states

have a very C)reat interest in havinq the Navajo Tribe waive its
reserved water rights claim· in exchange for the enumerated con-
siderationt the construction of the power plant on Reservation
(, property, Navajo employment, the purchase of Navajo coal, elee-

'··
trical power ,ales, and $125,000 to the Navajo Community Oolleqe.
With the existence and significance of the waiver concealed and
the consideration (While indefinite in ways later to be dis•
cussed) shown in bas relief, the erroneous impression is conveyed
that the Tribe is giving up little or nothi119' to obtain great

economic benefi ta, when exactly the opposite is quite likely to
be true.
....
·
46 Meyers. supra note 3, at 2.

47 Article III (d).
29
; '·,
; , ''•.
,. 8-1 Filed 06/27/23 Page 24 of 305
~
~" '/
'/
It should also be noted that, according to ·the

-the House
T:-ibe must waive arty clatm to water from the

bill., the Navajo T=ibe
Upper Basin in,

in.excess
excess of the Arizona allocation in order to
receive the AnteloPe Point

point lands. If the Tribe does not make
ternis of H. R. 10354'it
this waiver, by the terms 10354.it will not receive the
·, lzmds.
7. Remedy:
An action in
in.the of a suit to quiet tftle
'the nature ofa title in
the Tribe to 13,000,

13,000,000
000 a'cre-feet
a·cre-feet of Colorado River Basin water
.' . .-."
should be brought. All users of Colorado River Basin water - the.
the·
United States
states and the St'ates
St.ates of .P.rizona,
p.rizona, California,
california, Colorado,
Mexic¢>,. Utah and Wyoming should be named as

Nevada, New Mexic¢>"
defendants. In addition, all p~rsons and entities holding con-
.tracts
_tracts wi
with·
til· the Secretary of
of". the Interior'
Interior· for the use of Colorado
River water ~hould be named as de~eridants. In .this suit the
·, reserved water rights of the

t'he Navajo
.
Reservation
. under Winters
winters .·' ~
~
~·
~. United States,
States,.!.9pra,
.§..9pra, and its PI'C?geny;·
prqgeny;· :,should
:.should be asserted.
Tl,1e~Navajo
Tf,le ~Navajo Claim could .b_e
,b.e d~feated by several technical
consid~rations.
cons id~rations • First,·
Firs t,' t.~·a ·United
'Uni ted states
S ta tes ho
holds
lds the ti
title·
tIe - to the
reserved water,
water. rights
,. ,'
in trUst for,
for. the Indians. It,
It. might be
the united States to represent tlle Indian

held necessary for theunited
,~nterests
.~nterests in a.ny court' action - an obvious difficulty
difficulty~hen.
:when' the
United States is~ "at

··at the same time, one of the defendants. The
United states might merely refuse to present the Nayajo claim in

court. This possibility is extremely unlikely, given the deei-
sions of the United S·tates Supreme Court in such cases as
Poafpybitty v. Skelly Oil co.,68 and Lane v. ~ueblo of Santa

I
Rosa, 69 and of the courts of .P.ppeals in Skokomish Indian Tribe v.
France, 70 Jackson v. Sims,7l and Choctaw & Chickasaw Nations v.

. 72 . '
SeJ.tz. . In all of those CCiSes, the United States was held to
I
not be an indispensable party to the suit. I? Poafpybitty, an

i
action by Indian alidttees to recover damages! for .an alleged
I
breach of an oil and gas lease by the lessee oil company, the I
Supreme Court held:
" ••• [T]hesa restrictions on the Indian•s·control

of his land a:r·e mere incidents of ~1a promises
made by th:::!. tf!·:.ited States in variot!;:; tx·eaties
to protect ~·:u..:!ian ·land and have no effect on the
Indian's capacity to' institute the court action
necessary to protect his property."7 3
In Jackson v. Sims the court distinguished between those

' .
actions in which Indians wer~ attempting to protect their rights
I '
and those. in which other ·parties were attempt~ng to deprive

.• !
I
Indians of their r'ights, holding that the ·secretary

j .
of the l
Interior (in his official capacity) would be an·

I
ind.i:spensable
party only_ in the latter type C?f actio.n. In Skokorhish Indian

Tribe v. France, a case very much in point, the · un·~ tad States
I
I
68 390 u. s. 365 (1968)

69 249 u. s. 110 (1919)
70 269 F. 2d 555 (9th C;ir. 1959)
71 201 F:. 2d 259 (lOth Cir. 1953) ' -~,:,
72 '
193 F. 2d 456 (lOth Cir. 195l)cert.denied: 343 U;.S. 919(1952)
73 390 u. s. at 368-69 I
·44
was held not to be an indispensable party to an action by an

'\ ~ ~
' Indian Tribe to quiet title to lands claimed by virtue of treaty
and executive order.
·. Secondly, the United States might be held to be an

'
indispensable party to the suit becc.use of its interests in
navigation on the Colorado Ri.ver. If this were the case, it
could defeat the claim merely by refusing to give consent to be
sued. 74
Thirdly, the courts might find in the congressional
approval of the Colorado River Compact and the Upper Colorado
River Basin Compact, an implicit subordination of the Indian
water rights to L~e apportionments made by those compacts. Such
a finding, however, would have to ignore the provis.ions of those
compacts which state that they shall not affect the obligations
of the United States to the Indian Tribes. 75
Finally, the courts could find the Navajo claim to be
valid, but then, in fact, defeat that claim by construing the
measure of the Navajo water rights very narrowly.
74 See Arizona v. CaliforniaJ 298 u.s. 558 (1936). 43 u.s.c.

§666 (a) only gives consent to join the United States as a
defendant "where it appears that the United States is the
owner of ••• water rights by appropriation under state law •• "
75 A.R.S. §45-571, Article VII: A.R.S. §45-581, Article XIX.
45
I .
Case 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23
i Page 27 of 305
I
8. Conclusion: ·
This is a matter of inestimable importance.

I
Immediate
I
remedial action shoul~'be taken to recover the extensive water
rights belonging to the Navajo Iridian Reserva~ion. Speci'al water _
. and soil conservation experts and_ water lawye~s should be engaged

. '
to define, assert and affirm the Reservation's invaluable rights
tothe use of both Upper and Lower Colorado Ri~er Basin water
I
resources. 76
Prepared by: ·
~eodore R. Mitchell, [Micha'el Gross and

Daniel Ma~~eekin
Address:
DINEBEIINA NAHIILNA BE AGADITAHE, INC.

Post Office Box Number 368,. Window Rock,
Arizona 86515, Telephone 602/871~4151
'
' I '
76 That these·water rights are invaluable was confirmed in an

article. by William Greider in the wa~hinq~on Pc'st:
"Curiously, one source who agrees with ••• [the] contention
that the Navajos ·[by pas.sing Resolution CD-108-68] gave i:ap
something of vaiue is
Rep. Aspinall's staff rna~ on the
House Interior committee." "A Tribal water Fight", supra
·.note 62, at col. 5.
46
-----------
··- ......•. ·--................... .
. I , ... - ...... • •••·--··-,
I
\
·r·I
I
I
I
I
'
I
'
i
i
I
'
I
I
F G
i
i
I
i
i
i
:'!i
•I
J
..
.. .-i
·, The map on the lc:Ct shows the Nav:~jo Itcsen·:~:ion (the sh:1<Jcd :~rc:~) in
..
';
~ {.!}
J·ci:Hion to surrounding states, The :mccstors of the N:~v:~jos, :IS part of the
Athapa•cnn group from nritish Columbia, m:~y have :~rrivctl in the South-
.. Hl'q west by migr:ning southw:~rd :~cross the northwestern st:~tcs thron~h
.,
ll .J
A R. z 1'\'cv:Hia or Ut:~h :1110 into New Mexico and Arizon:1. for the locn:ion of
.• c:~rly settlement of the Nav:~jos, sec Eseabnte's M:~p. The c:~r!y N:l\':ljos
·:
:r ./ ranged over an extensive area, including northern i'ew Mexico :~nd Ari·
: zona and southern Utah and Colorado. The m:1p above shows the reser•
v:nion in more det:~il, indicating the successive .:~dditions :md their d.1tcs..
"I
r A-Ex. Orcl, M.1y 17, 18R1 G-TrC31Y o( June I, I RliB
.. L-Ex. Ortl. l':o>v, 11, 1901
- ll-E~. Ortl, May 15, 1905,

1\ct of Mar. I, 1933
C-;\ct ol May 23, 1930
H-I!JC, OrJ. Dec. I, 1913
I-EJC, Orcl. 1\pr. 21, 183G
J-E.x. Orcl. Jon. G, 1650
M-hcr of June 11, 1931
N-r:.x. Orcl. l':ov. 9, 19G7,
.Ex. Ord. 1•n. 2 8, 1908
,,,, D-Ex, OrJ, Jon, 8, 1900 K..;Ex. OrJ. J•n. 19, 1918, Q-1\cr of June H, 1931
E-E.x. Or<l. Dec, I G, 1832 llic. Ord.l>by 23, 1930,
F-E.x, Ord, O~L 29, 1673 and Act ol June 11, 1931
t.;9
.-'
··-t
r...
-·-···~-···--··- -·--·-----·-····-~~---~ ~-·-:'' ··-- -· .
"· Case 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23 Page 29 of 305
' .. FIGURE 2
f. ~-·· :~
.. ..
...
.. . ij
4 :a-..,.
I
0 I)
---j
A C I F C
I
M E X c 0
to ·• •• ... ••
•
JCAL( 0' •u~[S
LEGEND
· Resuvoirs
Montgomery & Andrews PA Invoices from AP JRNL FY2017 thru FY2020

FY2017 ISC M & A Invoices
Sum of Amount
Dept Date Supplier Supplier2 Invoice Total
Grand Total
FY2018
Sum of Amount
ZB0516 6/30/2018 47304 MONTGOMERY & ANDREWS PA 109925 $ 20,993.50
Grand Total $ 20,993.50
FY2019
Sum of Amount
ZC5570 11/26/2018 47304 MONTGOMERY & ANDREWS PA 111050 $ 51,196.71
1/3/2019 47304 MONTGOMERY & ANDREWS PA 111486 $ 38,605.19
989-19243 $ 11,460.16
3/4/2019 47304 MONTGOMERY & ANDREWS PA 14904-1009 $ 26,125.00
4/15/2019 47304 MONTGOMERY & ANDREWS PA I/2019/00471-19711$ 26,978.63
30280 $ 16,730.00
4/17/2019 47304 MONTGOMERY & ANDREWS PA I/2019/00605 $ 22,097.50
5/9/2019 47304 MONTGOMERY & ANDREWS PA 001-04-2019 $ 11,326.88
20143 $ 4,200.00
30285 $ 11,830.00
ZD6022 6/30/2019 47304 MONTGOMERY & ANDREWS PA $ 32,592.63
002-05-2019/30291/20289
1109-20468-30294 $ 58,917.37
113181 $ 14,568.40
003-06-2019 $ 15,453.91
004-07-2019 $ 10,789.34
FY2020
Sum of Amount
642100000 10/4/2019 47304 MONTGOMERY & ANDREWS PA 113182 $ 1,534.39
114706 $ 8,492.63
647000000 6/30/2020 47304 MONTGOMERY & ANDREWS PA 115879 $ 56,464.00
ZD5072 9/3/2019 47304 MONTGOMERY & ANDREWS PA $ 10,521.13
20807/US01U000181109-1152
US01U000200634 $ 11,290.43
10/31/2019 47304 MONTGOMERY & ANDREWS PA US01U000227768 $ 36,864.71
114553 $ 9,107.30
PY US01U000155729$ 16,783.21
US01U000251254 $ 57,088.13
2/14/2020 47304 MONTGOMERY & ANDREWS PA 22217 $ 900.00
ZD5072 2/24/2020 47304 MONTGOMERY & ANDREWS PA US01U000320508 $ 20,704.77

US01U000428566 $ 8,061.38
US01U000451235 $ 8,862.00
115879 $ 55,084.94
ZC5570 10/28/2019 47304 MONTGOMERY & ANDREWS PA PY 635-682 $ 4,072.50
ZE5069 6/30/2020 47304 MONTGOMERY & ANDREWS PA 115879 $ 60,943.17
FY2021
Sum of Amount
ZE5067A 8/21/2020 0000047304 MONTGOMERY & ANDREWS PA 116169 $ 1,585.90
117618 $ 19,346.43
ZE5069 8/7/2020 0000047304 MONTGOMERY & ANDREWS PA US01U000468781 $ 6,342.00
8/19/2020 0000047304 MONTGOMERY & ANDREWS PA INV-3330 $ 8,543.75
9/24/2020 0000047304 MONTGOMERY & ANDREWS PA INV-3701 $ 2,381.25
116908 $ 54,640.57
116920 $ 56,693.84
117780R $ 81,332.46
5/14/2021 0000047304 MONTGOMERY & ANDREWS PA INV-4058 $ 562.50
INV-4381 $ 425.00
INV-5615 $ 137.50
INV-5973 $ 275.00
6/21/2021 0000047304 MONTGOMERY & ANDREWS PA 118727 $ 750.00
118897 $ 3,712.50
118898 $ 11,955.23
118936 $ 34,729.05
118937 $ 46,688.31
0642100000 1/11/2021 0000047304 MONTGOMERY & ANDREWS PA PY 115803 $ 6,251.42
ZF5059 6/9/2021 0000047304 MONTGOMERY & ANDREWS PA PY 23089 $ 8,281.25
Office of the State Engineer/Litigation & Adjudlca April 25, 2017
Page#: 3
P.O. Box 25102
j Client: 014782
Santa Fe, NM 87504-5102 c, Matter: 001701
Invoice#: 105020
MAY 3 1 2017
I
RE: RFP #2017-01-0SE 1 • -'
For Professional Services Rendered Through March 31, 2017
SERVICES
Date Atty Description of Services Hours Rate Amount
Total Services 50.2 $10,040.00

...
/
PERSON RECAP
Attorney Hours Rate Amount

JJW Jeffrey J. Wechsler 50.2 $200.00 $10,040.00
SUBCONTRACT RECAP
·.
Subcontract Amount
Draper & Draper $3,940.00
Current Fees and Expenses $10,040.00

Subcontract Fees $3,940.00
Applicable Tax
Current Total Charges ~~
f!
f;t!
G{rv/t1
TERMS PAYABLE UPON RECEIPT. LATE CHARGES OF 1.25% PER MONTH MAY BE IMPOSED ON ACCOUNTS
NOT PAID BY THE LAST BUSINESS DAY OF THE MONTH FOLLOWING THE BILLING MONTH.
------------------
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Case 1:23-cv-00494-GBW-JFR Regular
DocumentEntry
8-1 Filed 06/27/23 Page 33 of 305 "' ~ : @
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~ummary Related Documents Invoice Information II Payments II j[oucher Attributes J;rror Summary
Business Unit 55000 Invoice No 112616
Voucher ID 00050019 Invoi ce Date 05/20/2019 Action Run

Voucher Sty le Regular Voucher
Total Amount 130,162.38 Pay Terms NOW Pay Now

Supplier Name MONTGOMERY & ANDREWS PA
Payment Information Find I View All First • 1 of 1 ~ Last
Payment
Remit to 000004 7304~ Gross Amount 130162.38 USD Scheduled Due 06/04/2019 Payment Inquiry
Location 001 Discount 0.00 USD Net Due 05/20/2019 Discount Denied
Address Discount Due Late Charge
Accounting Date 06/06/2019 Express Payment
MONTGOMERY & ANDREWS PA Payment Comments(O)
POST OFFICE BOX 2307 Holiday/Currency

SANTA FE, NM 87504-2307
I Payment Options
Bank WFB10 Pay Group Netting Not Applicable Supplier Bank
Messages
Account 0002 Handling Regular Payments L/C 10
I Hold Payment
Method CHK Check Hold Reason
Actions Separate Payment
Message
Message will appear on remittance advice.
I Schedule Payment
Action Schedule Payment Payment Date 06/06/2019
Pay Reference 2000960401
Save
~urn to Sear~ f1Ej'Previous in List ] f{f"Next in LiSt] ~otitYJ (?"""R"e tresii"]

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8-1 Filed 06/27/23 Page 34 of 305 it ~ : @
I ~ummary II Belated Documents Invoice Information II Payments II Youcher Attributes J;rror Summary
Business Unit 55000 Invoice No 1109-20468-30294

Action Run
Voucher ID 00050459 Invoice Date 07/02/2019
Voucher Style Regular Voucher
Total Amount 58,917.37 Pay Terms NOW Pay Now Schedule Payments

Payment Information Find I View All First 4 1 of 1 • Last
Payment
Remit to 000004 7304~ Gross Amount 58917.37 USD Scheduled Due 07/10/2019 Payment Inquiry
Location 001 Discount 0.00 USD Net Due 07/02/2019 Discount Denied
Address Discount Due Laie Charge
MONTGOMERY & ANDREWS PA Payment Comments(O)

SANTA FE, NM 87504-2307
Payment Options ]
Bank WFB 10 Pay Group Netting No!Applicable Supplier Bank
Messages
Account 0002 Handling Regular Payments L/C 10
Hold Payment
Method CHK Clleck Hold Reason
Message
Message will appear on remittance advice.
Schedule Payment
Action Schedule Payment Payment Date 07/16/2019

r
Save
I ~ Return to Search 111[] Previous in List II £[] Next in List 11!21 Notify II C Refresh j
Summary 1 Related Documents !Invoice Information 1 Payments 1 voucher Attributes 1 Error Summary
MONTGOMERY & ANDREWS, P.A.

P.O. Box 2307
Accounting Department
505-982-3873 MAKE ALL REMITTANCE PAYABLE TO
MONTGOMERY & ANDREWS, PA
Fax: 505-982-4289 Remittance Copy
email : accounling@montand.com
FEDERAL I.D. NO . 85-0262814 MAIL TO: POST OFFICE BOX 2307
SANTA FE, NM 87504
Office of the State Engineer July 07, 2020

Attn : Kim Abeyta Client: 014782
P.O . Box 25102
Santa Fe, NM 87504-25102
Matter# Description Invoice# Fees Expenses Tax Late Charge Total
001803 Interstate Dispute (RFP #2017-01-0 115879 $158,579.00 $519 .54$13,393.57 $0.00 $172 ,492.11
Previous Balance $70,926.26

Current Charges $159,098.54
Applicable Tax $13,393.57
Less Payments $70,926.26
Total Amount Due $172,492.11
PERSON RECAP

KWB Kaleb Brooks 104.0 $175 .00 $18,200.00
KBUR Kristen Burby 46.6 $100.00 $4,660 .00
RSG Ricardo S. Gonzales 98.9 $100.00 $9,890.00
CJEF Cody Jeff 24.5 $100 .00 $2,450.00
TLAW Troy Lawton 50 .9 $100 .00 $5,090.00
KEO Kari Olson 52.3 $175 .00 $9,152.50
YMS Yolanda M. Sandoval 41 .1 $90 .00 $3,699.00
JJW Jeffrey J. Wechsler 419.0 $225.00 $94,275.00
CAW Carolyn A. Wolf 5.2 $225 .00 $1 ,170.00
MAZ Matthew Zidovsky 57.1 $175 .00 $9,992 .50
Please return this page with your remittance and please reference the client/matter number on all related
correspondence .
Amount Paid : $_ _ _ _ _ _
------------------
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Case 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23 Page 36 of 305 ~ ~ : @
~ummary Related Documents Invoice Informatfon I Payments I y>oucher Attributes I J;rror Summary
Business Unit 55000 Invoice No 30316
Vou cher ID 00051085 Invoice Date 09/ 11/2019 Action Run
Voucher Style Regular Voucher
Total Amount 46,930.00 Pay Terms NOW Pay Now Schedule Payments

Payment Information Find I View. All First • 1 of 1 • Last
Payment
Remit to 0000047304\a Gross Amount 46930.00 USD Scheduled Due 10/04/2019 Payment Inquiry
Location 001 Discount 0.00 USD Net Due 09/ 11 /2019 Discount Denied
Address Discount Due Late Charge
Payment Comments(O)
MONTGOM ERY & ANDREWS PA
SANTA FE, NM 87504-2307
~ Payment Options
Bank WFB 10 Pay Group Netting Not Applicable Su pplier Bank

Messages
Account 0002 Handling Regular Payments UC IO
Hold Payment
Method CHK Check Hold Reason
Message
Message will appear on remittance advice .
~ Schedule Payment
Action scned ule Payment Payment Date 10/08/2019

.____Save
I[gt Return to Search If"[] Previous in List II ~ Next in List II ~ Notify II Z Refresh
P.O. Box 2307
\/lAKE ALL REMITTANCE PAYABLE TO
505-982-3873
Fax 505-982-4289 Remittance Copy
email: accounling@montand.com
MAIL TO POST OFFICE BOX 2307
FEDERAL I.D. NO. 85-0262814
SANTA FE, NEW MEXICO 87504-2307
Office of the State Engineer September 09, 2020

P.O . Box 25102
Santa Fe, NM 87504-25102
Matter# Description Invoice# Fees Expenses Tax late Charge Total
001803 Interstate Dispute (RFP #2017-01-0 116336 $57,478.50 $783.90 $4,915.89 $0.00 $63 ,178.29

correspondence .
Amount Paid $._ _ _ _ __
PERSON RECAP
C]EF Cody jeff 31.2 $100.00 $3 ,120.00

T LAW Troy Lawton 27.1 $100.00 $2,710.00
KEO Kari 0 lson 24.4 $175.00 $4,270.00
YMS Yolanda M. Sandoval 13.4 $90.00 $1,206.00
jJW jeffrey j. Wechsler 147.9 $225.00 $33,277.50
MAZ Matthew Zidovsky 10.2 $175.00 $1 ,785.00
Matte r MontJ• AmountBUiod Hud9.et BaliJnt

s664,056.83
1803 August $ 6,342.00 s 65 7.714.83 Ernst & Youn
II!OJ August s 8,543.75 s 549, 171. 08 Next poi nt
1803 July $ 63,178,29 $ 585,992. 79 M&A
s585.992.79
$585, 992.79
s 585,992.79
s 585.992.79
~ 78,054.04
P.O. Box 2307
IJ1AKE ALL REMITTANCE PAYABLE TO
505-982-3873
MONTGOMERY & ANDREWS , P.A.
Fax 505-982-4289 Remittance Copy
email: accounling@montand.com
MAIL TO: POST OFFICE BOX 2307
FEDERAL I.D. NO. 85-0262814
SANTA FE , NEW MEXICO 87504-2307
Office of the State Engineer April 06, 2021

P.O . Box 25102
Santa Fe, NM 87504-25102
Matter# Description Invoice# Fees Expenses Tax Late Charge Total
001803 Interstate Dispute (RFP#2017-01-0 117852 $75 ,004.00 $0.00 $6,328.46 $0 .00 $81 ,332.46

correspondence.
Amount Paid : $ PERSON RECAP

KWB Kaleb W. Brooks 122.8 $175.00 $21,490.00
RSG Ricardo S. Gonzales 60.0 $175.00 $10,500.00
TLAW Troy Lawton 17.5 $100.00 $1,750.00
WM William McGinnis 1.6 $90.00 $144.00
YMS Yolanda M . Sandoval 23.6 $75.00 $ 1,770.00
JJW jeffrey). Wechsler 158.4 $225.00 $35,640.00
MAZ Matthew Zidovsky 21.2 $175.00 $3,7 10.00
MJJt\t!t M9nlh Amoun Bl!t~ ll!>.!!f.RS..bn •

s 664,0S6.81
1803 Au,lfUst s 6~34-2.00 $ 6) 7, 714.83 Ernst & Youn
181ll Augu st s 8,543 .7) $ 649.171.08 Nextpoint
151)1 July s 63,l71L2'l s 58),992. 79 M&A
!Sol ! August s 61.961.19 s 524,031,60 M&A
180] Auaust s 2, 381.25 $ 521, 650,35 Nextpoint
tOOl Sept embet S 40,7U.7& $ 480,938-57 M&A
LOal October s 54, 640. 57 s 426,298.00 M&A
1110) Nov e.mbe r $ 56,693.84 s 369,604.16 r-.<&A
UIITl Apr·20 S 8,281,25 s361.322.91 f'lex tpolnt
1.301 Seo·ZO $ 562..50 $]60..760.41 Nextpmnt
160) Oct-20 S 425.00 .s 360.335.41 Nextpoint
1$0.] oec·20 $ 137.50 s 160,197.91 Ne x tpomt
!SOl Jan·21 S 275.00 $ 359*921. 91 Nextpom t
ISOl Dec-20 S 8l . B2.46 $ 278,590A5 M&A
$ 385,466.38
Contract No. ~,
~ \ ~9 g
--------~------
NEW MEXICO INTERSTATE STREAM COMMISSION

PRICE AGREEMENT FOR
PROFESSIONAL LEGAL SERVICES
This Professional Services Agreement ("Agreement") is entered into between the Office of
the State Engineer, New Mexico Interstate Stream Commission, an agency of the State of
New Mexico ("Agency") and Montgomery & Andrews Law Firm ("Contractor"), collectively the
"Parties", effective as of the date it is approved by the New Mexico Department of Finance and
Administration ("OF A"), which date is shown below.
RECITALS
THE PARTIES enter into this Agreement on the basis of the following recitals:
A. As a result of a formal procurement solicitation (RFP #2019-04-ISC), the Agency

desires to obtain professional services from the Contractor to provide Legal Services.
B. The Contractor has represented and warranted to the Agency that the Contractor
possesses the necessary skill to provide such services and is willing to do so pursuant to the
terms of this Agreement.
AGREEMENT
In consideration of the foregoing recitals and the covenants and promises contained herein, the
Parties agree as follows:
1. Term. This Agreement shall begin on the date it is approved by OF A and shall expire
on April 30, 2023 unless extended by amendment pursuant to Paragraph 22 (Amendment and
Waiver), or unless terminated at an earlier date, pursuant to Paragraph 3(g) (Appropriations) or
Paragraph 4 (Termination). In accordance with Section 13-1-150 NMSA 1978, no contract tenn
for a professional services contract, including extensions and renewals, shall exceed four years,
except as set forth in Section 13-1-150 NMSA 1978. The services that the Contractor is to
provide, however, shall not commence until the Contractor has (i) complied with the insurance
requirements of this Agreement (ii) received a fully executed copy of this Agreement, and
(iii) received specific instructions and an assignment from the "Contract Manager" designated by
the Agency.
2. Scope of Work.
(a) Generally. The Contractor shall perform the following work:
The Contractor will provide legal services as specified by the Agency, including some or all of
the following services: Provide comprehensive legal advice and counsel including, but not
limited to, litigation support and representation of the Agency before state administrative and
federal courts in the areas of water and environmental law; Provide legal advice and counsel to
the Agency regarding Office of the State Engineer ~ater rights administration including, but not
Contract No.- - - - - - -
limited to, representation of the Agency before the Office of the State Engineer; Provide legal
advice and counsel to the Agency for conducting complex negotiations on specialized and
technical areas of water, environmental and general civil law; Provide legal advice and counsel
regarding New Mexico's obligations under the interstate stream compacts to which it is a party,
Agency obligations and functions generally, and other matters involving or affecting the Agency.
The contract manager for the Agency will assign work. Individual work projects will be
identified deliverables and a time schedule. The contractor will be required to
assigned with idcntified
effectively and cooperatively with personnel at all levels and with a variety of
work effcctively
backgrounds, including other contractors, attorneys, engineers, administrative staff and clerical
support staff.
The contractor will be solely and wholly responsible for performing and completing assignments
to the satisfaction of the Agency. All work shall be performed in accordance with the highest
professional standards and completed within the time for performance mutually agreed upon
between the Agency and the contractor.
The Contractor shall advise the Agency promptly of any problems encountered in performing its
dutics
duties associated with this Agreement.
(b) Contract Manager; Assignment of Work; Deliverables; Status Reports. The

Contract Managcr
Manager will assign tasks, coordinate all communications between the Contractor and
the Agency related to the tasks assigned, and recommend approval or rejection of deliverables
and invoices. The Contractor shall consult with the Contract Manager concerning probrress on
assigned tasks and all issues related thcreto. assigned, modified, or withdrawn in
thereto. Tasks may be assigncd,
the discrction
discretion of the Contract Manager. Deliverables will be as specificd
specified by the Contract
Manager, or as otherwise described in a Scopc Scope of Work. When requested by the Contract
Manager, the Contractor will provide the Agency with status reports in a fonnat
format and at such
limes
times as directed.
(c) Performance Measures. Performance measures for the tasks assigned to the
Contractor under this Agreement are (i) prompt response to assigned tasks and requests for
information and status reports, (ii) completion of assigned tasks and submission of deliverablcs
and status reports within scheduled time frames, (iii) assigned tasks, deliverables, and status
reports completed in a manner and format reflecting a high quality of work and acceptable to the
Contract Manager in all respects, and (iv) assigned tasks, deliverable, and status reports prepared
and completed in an efficient and cost effective manner.
3. Compensation and Pavment.

Payment.
(a) Cost Limitation. The total amount payable by thc

the Agency under this Agreement
shall not exceed two hundred thousand dollars ($200,000.00) inclusive of applicable gross
receipt tax ("Cost Limitation Amount"). ThcThe Cost Limitation Amount is a maximum and not a
guarantee that the Contract Manager will assign thc
the Contractor any tasks, or that the work to be
performed will equal the Cost Limitation Amount. The Contractor shall be paid based upon the
Cost Schedule attached as Exhibit A hereto and made part hereof.
2
Contract No.
The Agency will encumber specific sums of money during fiscal years as necessary to pay for
the work to be performed pursuant to this Agreement ("Encumbered Amount"). The Contractor
is responsible for not billing in excess of the lesser of the Cost Limitation Amount or the
presently Encumbered Amount, and for verifying the Encumbered Amount with the Contract
Manager. The Contractor will not be compensated or reimbursed for work performed, or
expenses incurred, in excess of the lesser of the Cost Limitation Amount or the Encumbered
Amount.
(b) Travel and Expense Reimbursement. Compensation amounts shall be limited to

those specified in Paragraphs 3(a) and 3(b), in accordance with the New Mexico Per Diem and
Mileage Act, NMSA 1978, Sections 10-8-1 through 10-8-8. The Contract Manager must approve
all expenses in writing, and in advance, or the Contractor shall not be reimbursed for such
expenses.
(c)Jnvoices. Payment is subject to availability of funds pursuant to the

Appropriations Paragraph set forth below, to any negotiations between the Parties from year to
year pursuant to Article 2, Scope of Work, and to approval by DFA. The Contractor shall submit
signed invoices monthly to the Contract Manager. Those invoices shall contain the contract
number and a calculation of the payment due, based upon the Hourly Rate supported by a time
sheet reflecting dates, tasks, and hours billed (at tenth of an hour increments). The invoices shall
also contain all travel and expense reimbursement requests for work performed prior to or during
the invoiced period. The Contractor shall be entitled to receive payment only for work properly
invoiced and supported by appropriate documentation. All invoices for services must be received
by the Agency no later than July 15 1h of each year for work performed in the previous fiscal year
(the State of New Mexico's fiscal year runs from July JS 1 to June 30111 of each year). Invoices
received after such date will not be paid. Payment of the amount invoiced, or any part thereof,
shall not relieve the Contractor of any unperformed obligations or foreclose the Agency's right to
recover incorrect, excessive, or illegal payments.
(d) Exception to Invoices. If the Agency finds that the services performed or the
deliverables provided pursuant to this Agreement are unacceptable, within thirty (30) days of
receipt of the Contractor's invoice for such services the Agency will send to the Contractor a
letter of exception explaining the deficiency, along with details of how the Contractor may
rernediate the deficiency. Upon certification by the Agency that the services have been received
and accepted, payment shall be tendered to the Contractor within thirty (30) days after the date of
acceptance. If payment is made by mail, the payment shall be deemed tendered on the date it is
postmarked. However, the Agency shall not incur late charges, interest, or penalties for failure to
make payment within the time specified herein.
(e) Property. The Contractor shall not be reimbursed for any property or equipment
that the Contractor might acquire or store during, and related to, performance of this Agreement.
If this Agreement is amended to provide for reimbursement of property or equipment acquired,
the Contractor shall report such acquisition to the Agency within fifteen ( l 5) days of acquisition,
such property or equipment shall be the property of the Agency and shall be delivered to the
3
Contract No._ _
____
____
____
__
Agency immediately upon this Agreement's expiration or termination or, if during the term of
this Agreement, immediately upon the request for the property by the Agency.
(f) Mistake in Compensation. The Contractor shall reimburse the Agency for
amounts paid to it in error within thirty (30) days of written notice of such error. The Contractor
shall promptly notify the Agency if the Contractor independently
independcntly becomes aware of such an
error.
crror. Interest shall accrue at the statutory rate upon any amounts not reimbursed to the Agency
th day following the earlier of the date of
(3oth)
after the thirtieth (30
(30'h)) such notice to the Contractor or
the date the Contractor otherwise becomes aware of 0 f such error.
(g) Appropriations. The terms of this Agreement are contingent upon sufficientsufficicnt
appropriations and authorization being made by the Legislature and the State of New Mexico,
thc Agency, for the performance of this Agreement. If sufficient appropriations
and available to the
and authorization are not made by the Legislature and the State of New Mexico, and made
available to the Agency, this Agreemcnt
Agreement shall terminate immediately upon written notice being
given by the Agency to the Contractor. The Agency's decision as to whether sufficient
appropriations are available shall be accepted by the Contractor and shall be final. If the Agency
Agcncy
proposes an amendment to the Agrecment
Agreement to unilaterally reducc
reduce funding, the Contractor shall
have the option to tcrminate
terminate the Agreement or to agree to the reduced funding, within thirty (30)
days of receipt of the proposed amendment. Any amendment made under the terms of this
Paragraph shall be governed by the terms of Paragraph 22(c).
4. Termination.
(a) Grounds. The

Thc Agency may terminate
terminatc this Agreement for convenience or cause.
The Contractor may only terminatc
terminate this Agreement based upon the Agency's uncured, matcrial
material
breach of this Agreement.
Agrccment.
(b) Notice; Agency Opportunity to Cure.
(I) Except as otherwise providcd

provided in Paragraph ((44 )(b )(3
)(3),
}, the Agency shall give
the Contractor written notice of termination at least thirty (30) days prior to the intended date of
termination.
(2) The Contractor shall give the Agency written notice of termination at least
thirty (30) days prior to the intended date of termination. The Contractor's notice shall
(i) identify all the Agency's material breaches of this Agreement upon which the termination is
based and (ii) state what the Agency must do to cure such material brcaches.
breaches. The Contractor's
notice of termination shall only be etfective (i) if the Agency does not curc
cure all material breaches
within the thirty (30) day notice period or (ii) in the case of material breaches that cannot be
eured
cured within thirty (30) days, if the
thc Agency does not, within the thirty (30) day notice period,
notify the Contractor of its intent to cure and begin with due diligence to cure the material
breach.
(3) Notwithstanding the foregoing, this Agreement may be terminated
immediately upon written notice to the Contractor (i) if the Contractor becomes unable to
perform the services contracted for, as determined by the Agency; (ii) if, during the term of this
4
Contract No. - - - - -
Agreement, the Contractor is suspended or debarred by the State Purchasing Agent; or (iii) if the
Agreement is terminated pursuant to Paragraph 3(g) (Appropriations) of this Agreement.
(c) Liability. Except as otherwise expressly allowed or provided under this

Agreement, the Agency's sole obligation upon termination shall be to pay for acceptable work
performed prior to the Contractor's receipt or issuance of a notice of termination; provided.
however. that a notice of termination shall not nullify or otherwise affect either party's liability
however,
for pre-termination defaults under or breaches of this Agreement. The Contractor shall submit an
invoice for such work within thirty (30) days of receiving or sending the notice of termination.
TillS PROVISION IS NOT EXCLUSIVE AND DOES NOT WAIVE THE AGENCY'S OTHER
LEGAL RIGHTS AND REMEDIES CAUSED BY THE CONTRACTOR'S DEFAULT/BREACH
OF THIS AGREEMENT.
(d) Termination Management. Immediately upon receipt by either the Agency or the
Contractor of a notice of termination of this Agreement, the Contractor shall: 1) I) not incur any
further obligations for salaries, services or any other expenditure of funds under this Agreement
without the written approval of the Agency; 2) comply with all directives issued by the Agency
in the notice of termination as to the performance of work under this Agreement; and 3) take
such action as the Agency shall direct for the protection, preservation, retention or transfer of all
property titled to the Agency and records generated under this Agreement. Any non-expendable
personal property or equipment provided to, or purchased by, the Contractor with contract funds
shall become the property of the Agency upon termination of this Agreement, and shall be
submitted to the Agency as soon as practicable thereafter.
5. Transfer of Files. Upon expiration or termination of this Agreement, the Contractor

shall
shaH assist and cooperate with the Agency in the orderly and timely transfer to the Agency of
files, documents, memoranda, notes, data, and related materials, whether provided by the Agency
to the Contractor or created by the Contractor pursuant to this Agreement.
6. Transfer of Personal Property and Equipment. Any non-expendable personal property

or equipment provided to or purchased by the Contractor with contract funds shall becom becomee
property of the Agency upon termination of this Agreement and shall be submitted to the Agency
as soon a practicable thereafter.
7. Disputes. The Contractor and the Contract Manager will attempt to informally resolve
any disputes that may arise in relation to this Agreement. The Contractor, acting through the
Contract Manager, shall report in writing any dispute not so resolved to the Director of the
Agency within thirty (30) days of the Contractor's knowledge of the circumstances giving rise to
the dispute. The
Thc Director's written decision shall be delivered to the Parties within fifteen (I
(15)
5)
days of receipt of the
thc written dispute and shall be final unless, within thirty (30) days from the
date of the decision, the Contractor seeks appropriate legal relief pursuant to Paragraph 29.
Failure to use
usc the above procedure in a timely manner, or to file a timely appeal either to the
Director, or from the Director's decision, shall be deemed acceptance of the decision and waiver
of any further claim or remedy in law or equity.
cquity.
5
Contract No.
8. Status of Contractor.
(a) Independent Contractor; Costs of Business. The Contractor and its agents and
employees are independent contractors performing professional services for the Agency and are
not employees of the State of New Mexico. The Contractor and its agents and employees shall
not accrue leave, retirement, insurance, bonding, use of state vehicles, or any other benefits
afforded to employees of the State of New Mexico as a result of this Agreement. The Contractor
acknowledges that all sums received hereunder are reportable by the Contractor for tax purposes,
including without limitation, self-employment and business income tax. The Contractor agrees
not to purport to bind the State of New Mexico unless the Contractor has express written
authority to do so, and then only within the strict limits of that authority.
(b) Authority of Contractor. The Contractor shall not purport to bind the State of
New Mexico, nor its officers or employees, to any obligation not expressly authorized herein.
Without the Agency's express written permission, the Contractor shall not, in any manner,
reference the Agency in such a way that states or implies the Agency's endorsement of the
Contractor or the Contractor's work. The Contractor may use the Agency as a reference.
(c) Other Contractors. The Agency may, for any reason, enter into other agreements
for services related or identical to the services contemplated by this Agreement, whether or not
this Agreement has expired or been terminated. The Contractor shall fully cooperate with the
Agency and its other contractors.
(d) Subcontracting. The Contractor shall not subcontract any portion of the services
to be performed under this Agreement without the prior written approval of the Agency. No such
subcontract shall relieve the primary Contractor from its obligations and liabilities under this
Agreement, nor shall any subcontract obligate direct payment to any subcontractor from the
Agency.
9. Release. By accepting payment of the amounts due under this Agreement, the
Contractor releases the State of New Mexico, its officers and employees, from all liabilities and
obligations whatsoever related to this Agreement or the services provided hereunder. Payment to
the Contractor by the Agency shall not, however, constitute final release of the Contractor.
Should audit or inspection of the Contractor's records subsequently reveal outstanding Contractor
obligations, the Contractor shall remain liable to the Agency for such obligations. All payments
by the Agency to the Contractor will be subject to any appropriate recoupment by the Agency.
10. Records and Financial Audit. The Contractor shall maintain detailed time and
expenditure records that indicate the date, time, nature and cost of services rendered during the
Agreement's term and effect. The Contractor shall retain those records for a period of three (3)
years from the date of final payment under this Agreement. The records shall be subject to
inspection by the Agency, the Department of Finance and Administration and the State Auditor.
The Agency shall have the right to audit billings both before and after payment. Payment under
this Agreement shall not foreclose the right of the Agency to recover excessive or illegal
payments
6
Contract No. ----------------
11. Indemnification. The Contractor shall defend, indemnify and hold harmless the
Agency and the State of New Mexico from all actions, proceeding, claims, demands, costs,
damages, attorneys' fees and all other liabilities and expenses of any kind from any source which
may arise out of the performance of this Agreement, caused by the negligent act or failure to act
of the Contractor, its officers, employees, servants, subcontractors or agents. In the event that
any action, suit or proceeding related to the services performed by the Contractor or any officer,
agent, employee, servant or subcontractor under this Agreement is brought against the
Contractor, the Contractor shall, as soon as practicable but no later than two (2) days after it
receives notice thereof, notify the legal counsel of the Agency and the Risk Management
Division of the New Mexico General Services Department.
12. Insurance. The Contractor shall maintain in full force and effect during the term of
this Agreement the insurance coverage set forth below, from a company authorized to write such
insurance in New Mexico. Upon request by the Agency, the Contractor shall furnish the Agency
with a certificate of such policy in a form satisfactory to the Agency. Such certificate and policy
shall provide that the Agency shall be given thirty (30) days advance written notice before the
policies arc canceled, materially changed, or not renewed. The Agency reserves the right to
reject insurance or insurers tendered by the Contractor. If such insurance or insurer is rejected,
the Contractor will be granted reasonable additional time to obtain alternative coverage
acceptable to the Agency, but performance of services under this Agreemcnt
Agreement may be suspended
by the Agency during such time.
(a) Comprehensive General Liability Insurance. If the Cost Limitation

Amount of this Agreement exceeds One Hundred Thousand Dollars ($100,000), comprehensive
general liability insurance with liability limits of not less than One Million Dollars ($1,000,000)
($1 ,000,000)
combined single limit of liability for bodily injury, including death, and property damage in any
one occurrence. Said general liability insurance must include coverage for all operations
performed by the Contractor. Contractual liability coverage shall specifically insure the
indemnification provisions of this Agreement and the Agency shall be named as an additional
insured.
(b) Automobile Insurance. If the Cost Limitation Amount of

ofthis
this
Agreement exceeds One Hundred Thousand Dollars ($100,000),
($1 00,000), automobile insurance with
liability limits of not less than One Million Dollars ($1 ($1,000,000)
,000,000) combined single limit of
liability for bodily injury, including death, and property damage in anyone
any one occurrence. Said
automobile policy of insurance must include coverage for all operations performed by the
Contractor, coverage for the use of all owned, non-owned, hired automobiles, vehicles, and other
equipment. Contractual liability coverage shall specifically insure the indemnification
provisions of this Agreement and the Agency shall be named as an additional insured.
(c) Workers' Compensation Insurance. The Contractor agrees to comply with

state laws and rules applicable to workers compensation benefits for its employees. lf If the
Contractor fails to comply with the Workers Compensation Act and applicable rules when
required to do so, this Agreement may be terminated by the Agency.
7
Contract No.
(d) Professional Liability Insurance. If applicable and required by the

Agency, the Contractor shall maintain in full force and effect during the term of this
Agreement professional liability insurance, also known as malpractice insurance, with
Liability limits of not less than One Hundred Thousand Dollars ($100,000), from a
Company authorized to write such insurance in New Mexico.
13. Work Product; Copyright. Trademark. The Contractor warrants that nothing the
Contractor produces pursuant to this Agreement will infringe upon or violate any right to
confidentiality or property right, whether intellectual or otherwise, of any third party. The
Contractor shall indemnify, defend, and hold harmless the State of New Mexico, its officers and
employees, from and against any and all loss, cost, liability, or expense arising out of the breach
or claimed breach of the foregoing warranty. Nothing the Contractor produces or develops, in
whole or in part, pursuant to this Agreement shall be the subject of an application for copyright,
trademark or other property right by or on behalf of the Contractor. All things the Contractor
produces, develops, or acquires pursuant to this Agreement, including files, documents,
memoranda, notes, work papers, or related things, shall become the property of the State of
New Mexico and shall be delivered to, orifintangible assigned to, the Agency immediately upon
the expiration or termination of this Agreement, or, if during the term of the Agreement,
immediately upon the request of the Agency. The Contractor shall execute, acknowledge, and
deliver any documents and make any filings necessary to establish or evidence the State of
New Mexico's ownership.
14. Conflict oflnterest; Governmental Conduct Act.
(a) The Contractor represents and warrants that it presently has no interest and,
during the term of this Agreement, shall not acquire any interest, direct or indirect, which would
conflict in any manner or degree with the performance of services required under the Agreement.
(b) The Contractor further represents and warrants that it has complied with, and,
during the term of this Agreement, will continue to comply with, and that this Agreement
complies with all applicable provisions ofthe Governmental Conduct Act, Chapter 10, Article 16
NMSA 1978. Without in any way limiting the generality of the foregoing, the Contractor
specifically represents and warrants that:
I) in accordance with Section 10-16-4.3 NMSA 1978, the Contractor does

not employ, has not employed, and will not employ during the term of this Agreement any
Agency employee while such employee was or is employed by the Agency and participating
directly or indirectly in the Agency's contracting process;
2) this Agreement complies with Section 10-16-7(A) NMSA 1978 because

(i) the Contractor is not a public officer or employee of the State; (ii) the Contractor is not a
member of the family of a public officer or employee of the State; (iii) the Contractor is not a
business in which a public officer or employee or the family of a public officer or employee has
a substantial interest; or (iv) if the Contractor is a public officer or employee of the State, a
member of the family of a public officer or employee of the State, or a business in which a public
officer or employee of the State or the family of a public officer or employee of the State has a
8
Contract No.- - - - - -
substantial interest, public notice was given as required by Section 10-16-7(A) NMSA 1978 and
this Agreement was awarded pursuant to a competitive process;
3) in accordance with Section 10-16-8(A) NMSA 1978, (i) the Contractor is

not, and has not been represented by, a person who has been a public officer or employee of the
State within the preceding year and whose official act directly resulted in this Agreement and (ii)
the Contractor is not, and has not been assisted in any way regarding this transaction by a former
public officer or employee of the State whose official act, while in State employment, directly
resulted in the Agency making this Agreement;
4) this Agreement complies with Section 10-16-9(A)

10-16-9(A) NMSA 1978 because
(i) the Contractor is not a legislator; (ii) the Contractor is not a member of a legislator's family;
(iii) the Contractor is not a business in which a legislator or a legislator's family has a substantial
interest; or (iv) if the Contractor is a legislator, a member of a legislator's family, or a business
busincss in
which a legislator or a legislator's family has a substantial interest, disclosure has been made as
required by Section 10-16-9(A)
10-16-9(A) NMSA 1978, this Agreement is not a sole source or small
purchase contract, and this Agreement was awarded in accordance with the provisions of the
Procurement Code;
5) in accordance with Section 10-16-13 NMSA 1978, the Contractor has not
directly participated in the preparation of specifications, qualifications or evaluation criteria for
this Agreement or any procurement related to this Agreement; and
6) in accordance with Sections 10-16-3 and 10-16-13.3 NMSA 1978, the

Contractor has not contributed, and, during the term of this Agreement, shall not contribute,
anything of value to a public officer or employee of the Agency.
(c) The Contractor's representations and warranties in Paragraphs (a) and (b) of ofthis
this
Article 14 are material representations of fact upon which the Agency relied when this
Agreement was entered into by the Parties. The Contractor shall provide immediate written
notice to the Agency if, at any time during the term of this Agreement, the Contractor learns that
the Contractor's representations and warranties in Paragraphs (a) and (b) of this Article 14 were
erroneous on the effective date of this Agreement or have become erroneous by reason of new or
changed circumstances. If it is later determined that the Contractor's representations and
warranties in Paragraphs (a) and (b) of this Article 14 were erroneous on the effective date of this
Agreement or have become erroneous by reason of new or changed circumstances, in addition to
other remedies available to the Agency, and notwithstanding anything in the Agreement to the
contrary, the Agency may immediately terminate the Agreement.
(d) All terms defined in the Governmental Conduct Act have the same meaning in
this Article 14.
15. Format of Electronic Dcliverables. Text documents and spreadsheet dcliverables

dclivcrables
provided to the Agency in an electronic format pursuant to this Agreement shall be prepared,
stored, and delivered in Microsoft Corporation-produccd
Corporation-produced software (e.g., Word or Excel), unless
the Contract Manager approves the use
usc of an alternate software format in w.riting. Database,
9
Contract No.
spatial and geographic information system deliverables provided to the Agency in electronic
format pursuant to this Agreement shall be prepared, stored, and delivered in a software format
approved of in writing by the Contract Manager. The Contractor shall be responsible for
requesting and obtaining the Contract Manager's written approval of the software format the
Contractor proposes to use prior to beginning the preparation of such deliverables. Should the
Contractor utilize a software format not approved in writing by the Contract Manager, the
Contractor shall bear all costs or expenses, of any type whatsoever, incurred by the Contractor or
the Agency in converting or otherwise preparing such electronic deliverables in a software
format acceptable to the Agency.
16. Equal Opportunity Compliance. The Contractor agrees to abide by all federal and
state laws and rules and regulations, and executive orders of the Governor of the State of New
Mexico pertaining to equal employment opportunity. In accordance with all such laws of the
State of New Mexico, the Contractor assures that no person in the United States shall, on the
grounds of race, religion, color, national origin, ancestry, sex, age, physical or mental handicap,
or serious medical condition, spousal affiliation, sexual orientation or gender identity, be
excluded from employment with or participation in, be denied the benefits of, or be otherwise
subjected to discrimination under any program or activity performed under this Agreement. lfthe
Contractor is found not to be in compliance with these requirements during the life of this
Agreement, the Contractor agrees to take appropriate steps to correct these deficiencies.
17. Penalties for Violation of Law The Procurement Code, NMSA 1978 §§ 13-1-28
through 13-1-199, imposes civil and criminal penalties for its violation. ln addition, the New
Mexico criminal statutes impose felony penalties for illegal bribes, gratuities and kickbacks.
18. Confidentiality. The Contractor shall maintain the confidentiality of all information
provided by the Agency, derived from such information, or otherwise learned or developed by
the Contractor pursuant to this Agreement. The Contractor shall neither use nor disclose such
information without the Agency's express written permission, and shall promptly notify the
Agency of any unauthorized disclosure and assist in investigating any unauthorized disclosure or
preventing the recurrence thereof. The confidentiality obligations included in this Paragraph
survive the expiration or termination of this Agreement, as set forth in Paragraph 30. The
Contractor assumes responsibility for all liability caused by any violation of this Paragraph.
19. Excusable DeJa . The Contractor and the Agency shall be excused from performance
under this Agreement for any period such performance is prevented in whole or in part as a result
of an act of God, war, civil disturbance, epidemic, court order, or other cause beyond their
reasonable control. Such nonperformance shall not be a ground for termination of this
Agreement but shall not, by itself, extend the term of this Agreement.
20. Policies and Procedures. The Contractor shall follow any policies and procedures
that may, from time to time, be established by the Agency, and of which the Contractor is made
aware.
10
Contract No.
21. Notices. Any notice required to be given to either party by this Agreement shall be
in writing and shall be delivered in person, by courier service or by U.S. mail, either first class or
certified, return receipt requested, postage prepaid, as follows:
To OSE/ISC: Interstate Stream Commission

Hannah Riseley-White
Post Office Box 25102
Santa Fe, New Mexico 87504-5102
Telephone: 505-827-4029
To Contractor: Montgomery & Andrews Law Firm

Jeffrey J. Wechsler
325 Paseo de Peralta
Santa Fe, New Mexico 87501
Telephone: 505-986-2637
22. Amendment and Waiver.
(a). This Agreement shall not be altered, changed or amended except by an instrument
in writing executed by the Parties hereto and all other required signatories.
(b). A Party's failure to require strict performance of any provision of this Agreement
shall not waive or diminish that Party's right thereafter to demand strict compliance with that or
any other provision. No waiver by a Party of any of its rights under this Agreement shall be
effective unless express and in writing, and no effective waiver by a Party of any of its rights
shall be effective to waive any other rights.
(c). If the Agency proposes an amendment to the Agreement to unilaterally reduce

funding due to budget or other considerations, the Contractor shall, within thirty (30) days of
receipt of the proposed Amendment, have the option to terminate the Agreement, pursuant to the
termination provisions set forth in Article 4 herein, or to agree to the reduced funding.
23 . New Mexico Employees Health Coverage.
(a). If the Contractor has, or grows to, six (6) or more employees who work, or
who arc expected to work, an average of at least 20 hours per week over a six (6) month period
during the term of the contract, the Contractor certifies, by signing this Agreement, that the
Contractor has in place, and agrees to maintain for the term of the contract, health insurance for
those employees and offer that health insurance to those employees if the expected annual value
in the aggregate of any and all contracts between the Contractor and the State exceed $250,000
dollars.
(b) . The Contractor agrees to maintain a record of the number of employees

who have (a) accepted health insurance; ·(b) declined health insurance due to other health
11
_ _ _ _ _ _ __
Contract No. ----------------
insurance coverage already in place; or (c) declined health insurance for other reasons. These
records are subject to review and audit by a representative of the state.
(c).
(c). The Contractor agrees to advise all employees of the availability of State
publicly financed health care coverage programs by providing each employee with, at a
mtmmum,
mlmmum, the following web site link to additional information:
hUp:llinsurenewmexico.state.nm.us/.
http://insurenewmexico.state.nm.us/.
(d) For Indefinite Quantity, Indefinite Delivery contracts (price agreements

without specific limitations on quantity and providing for an indetenninate number of orders to
be placed against it) the Contractor agrees that the requirements of this Article shall apply the
first day of the second month after the contractor reports combined sales (from State and, if
applicable, from local public bodies if
iffrom
from a State price agreement) 0[$250,000.
of$250,000.
24. Employee Pay Equity Reporting. The Contractor agrees if it has ten (10) (1 0) or more
New Mexico employees OR eight (8) or more employecs employees in the
thc same job classification, at any
time during the term of this contract, it will complete and submit the PEl P
PEIO-249
E 10-249
0-249 form on the
annual anniversary of the initial report submittal for contracts up to one (I) (1) year in duration.
duration. 1Iff
the Contractor has two hundred and fifty (250) or more employees, the Contractor must complete
and submit the PE250 form on the annual anniversary of the initial report submittal for contracts
(1) year in duration. For contracts that extend beyond one (1) calendar year, or are
up to one (\)
extended beyond one ((1) 1) calendar year, the Contractor also agrees to complete and submit the
PElI 0-249 or PE250 form, whichever is applicable, within thirty (30) days of the annual contract
PE
anniversary date ofofthe
the initial submittal date or, ifmore
if more than 180 days has elapsed since submittal
of the last report, at the completion of the contract, whichever comes first. Should the Contractor
not meet the size requirement for reporting at contract award but subsequently grow to meet or
exceed the size requirement for reporting, the Contractor agrees to provide the required report
within ninety (90) days of meeting or exceeding the size requirement. That submittal date shall
serve as the basis for submittals required thereafter. The Contractor also agrees to levy this
requirement on any subcontractor(s) performing more than 10% I 0% of the dollar value of this
contract if said subcontractor(s) meets, or grows to meet, the stated employee size thresholds
during the term of the contract. The Contractor further agrees that, should one or more
subcontractor not meet
mect the size requirement for reporting at contract award but subsequently
grow to meet or exceed the size requirement for reporting, the Contractor will submit the required
report, for each such subcontractor, within ninety (90) days of that subcontractor meeting or
exceeding the size requirement. Subsequent report submittals, on behalf of each such
subcontractor, shall be due on the annual anniversary of the initial report submittal. The
Contractor shall submit the required formes)
form(s) to the State Purchasing Division of the General
Services Department, and other departments as may be determined, on behalf of the applicable
subcontractor(s) in accordance with the schedule contained in this paragraph. The Contractor
acknowledges that this subcontractor requirement applies even though the Contractor itself may
not meet the size requirement for reporting and may not be required to report itself.
Notwithstanding the foregoing, if this contract was procured pursuant to a solicitation,

and if the Contractor has alrcady
already submitted the required report accompanying their response to
such solicitation, the report does not need to bc
be re-submitted with this Agreement.
12
Contract No. ----------------
25. Assignment. The Contractor shall not assign or transfer any rights, obligations,
duties, or other interest in, or claim for money due under, this Agreement without the prior
written consent of the Agency, which consent may be withheld in the Agency's sole and absolute
discretion. The Agency may assign this Agreement to another governmental agency or unit,
including any assignment necessitated by governmental reorganization.
26.. Legal Proceedings. Attendance or testimony by the Contractor in any legal

26
proceedings, including trials, hearings, depositions, arbitration, or mediation, shall be
bc considered
a part of this Agreement. Should the thc Agency request attendance by the Contractor after
expiration or termination of this Agreement, a new contract will be negotiated at a rate
commensurate with the services. The provisions contained in this paragraph shall not apply to
disputes solely between the Contractor and the Agency.
27. Calculation of Time. Any time period herein calculated by reference to "days"
means calendar days; provided, however, that if the last day for a given act falls on a Saturday,
Sunday, or a holiday observed by the State of New Mexico, the day for such act shall be first day
following that is not a Saturday, Sunday, or such observed holiday.
28. Interpretation. The captions and paragraph headings used herein are for descriptive
purposes only and do not limit, define, or enlarge the terms of this Agreement. Unless otherwise
indicated by the context, usc of the singular, plural, or a gender shall include the other, and the
use of the words "include" and "including" shall be construed as if "without limitation" or "but
not [be) limited to" were annexed thereafter.
29. Applicable Law. The laws of the State of New Mexico shall govern this Agreement,
without giving effect to its choice of law provisions
provisions.. Venue shall be proper only in a New
Mexico court of competent jurisdiction in accordance with NMSA 1978, § 38-3-1 (G). By
Mcxico
execution of this Agreement, the Contractor acknowledges and agrees to the jurisdiction of the
courts of the State of New Mexico over any and all lawsuits arising under or out of any term of
this Agreement.
30. Survival. Terms of this Agreement that provide for rights, duties, or obligations that
expressly or logically extend beyond its expiration or termination, including the Contractor's
indemnity obligations, shall survive such expiration or termination.
31. Invalid Term or Condition. If any term or condition of this Agreement is held
invalid or unenforceable, the remainder of this Agreement shall not be affected and shall be valid
and enforceable.
32. Incorporation and Merger. Each of the recitals set forth at the beginning of this
Agreement, and any exhibits referenced herein and attached hereto, arc incorporated into this
Agreement by this reference. This Agreement incorporates all al:,rreements, covenants, promises
and understandings between the Parties concerning the subject matter hereof, and all prior or
contemporaneous agreements and understandings are merged into this Agreement. No prior
13
Contract No.
agreement or understanding, oral or otherwise, of the Parties or their agents shall be valid or
enforceable unless embodied in this Agreement. This Agreement may be executed in multiple
originals, each of which shall be deemed an original.
33. Authority. If the Contractor is other than a natural person, the individual(s) signing
this Agreement on behalf of the Contractor represent and warrant that they have the power and
authority to bind the Contractor, and that no further action, resolution, or approval from the
Contractor is necessary to enter into a binding contract
Signatures follow on page 15
14
Contract No. ________
IN WITNESS WHEREOF, the Parties have entered into this Agreement.
Date: S"" JI / I <j

I I
AGENCY
By: ~~ Date: _)/)/1

Interstate Stream Commission-.Qi:.eeter ~.,.; r,., ().olo'\..
Approv •
By: _~--t Date: _,_

t;..._
/~ .//
. __.. .j_
.
rimm, Director
Administrative Services Division
Approved by Agency CFO:
By: ~~~ Date:

1:
0
ii Approved as to form and sufficiency:
U'.ey d.d ~:::L

£~ ~ ~~ial
oatc tJ....{ :3J~~
Cl'"
~~
·-
.... :0
(1J
~lii
,.._
§ ~ .TAXATION AND REVENUE DEPARTMENT
.!!! ~~The records of the Taxation and Revenue Department of the State of New Mexico reflect that
g
~ ~ Contractor is registered with the department to pay gross rec~ipts and compensating taxes.
! .a~ lD Number: - ~ 4000 3
a: g £ ~ fi?j"J r
~c_w
~:; By: ~~t
C-' t.ttw1f-<{l L•D-' r.J Date: - ~ - ~ -12_
Y'c o/czlsXJt;
.!2 == .5
! ~~DEPARTMENT OF FINANCE AND ADMINISTRATION
~. (I""~
0
By -
~te C
racts Offi~
1s
Contract No.
APPENDIX A
Montgomery & Andrews Law Firm
Hourly Rate & Expense Schedule
Hourly Labor Rates:
Name Base Rate*

Jeffrey J. Wechsler $225.00 per hour
Louis W. Rose $225.00 per hour
Sharon T. Shaheen $225.00 _Eer 1!.'?~!___
Kari E. Olson $175.00 Eer h<?ur -· _
Kaitlyn A. Luck $175.00 per hour
*Excluding New Mexico Gross Receipts Tax
Direct Expenses*:
Item I Price Per Unit

Per Diem and Mileage at rates specified in the current Agency travel
policy and NM Per Diem & Mileage Act, without markup.
*Excluding New Mexico Gross Receipts Tax
16
Contract No.:2199R
AMENDMENT NO.3
NO. 3
PRICE AGREEMENT FOR
PROFESSIONAL LEGAL SERVICES
BETWEEN THE NEW MEXICO INTERSTATE STREAM COMMISSION AND
MONTGOMERY & ANDREWS LAW FIRM
This Amendment to the Agreement #21998 ("Amendment No. 3"), is entcred entered into by and
between the Office ofofthc
the State Engineer, Interstate Stream Commission, an agency of ofthe
the State
of New Mexico ("Agency"), and Montgomery & Andrews Law Finn. ("Contractor"),
collectively the "Parties", effective as of the date set forth below upon which it is executed by the
General Services DepartmenVState Purchasing Division (GSD/SPD Contracts Review Bureau).
RECITALS
THE PARTIES HERETO enter into this Amendment No.3 on the basis of the following
facts, understandings, and intentions:
A. The parties previously entered into that certain Professional Services

Serviccs Agreement
dated May 9, 2019, (the "Original Contract"); and,
B. The Original Contract was amended by thc

the Parties pursuant to that certain
Amendment Number lI dated December 9, 2019, which increased the contract Cost Limitation
from $200,000 to $900,000; and,
C. Thc
The Original Contract was amended by the Parties pursuant to that certain
Amendment Number 2 dated April 24, 2020, which increased thethc contract Cost Limitation from
$900,000 to $1,560,000;
$1 ,560,000; and,
D. Article 22, of the Original Contract allows for amcndment

amendment of the contract in
writing executed by both parties; and,
E. The Contractor has been providing services to the Agency, and the Agency is
satisfied with those services and is hereby requesting Article 2 - Scope of Work and Article 3(a)
Cost Limitation be amended to increase the Cost Limitation from $1,560,000 to $3,060,000 to
reflect the agreement tcnn.
AGRHHM6'N1'
THEREFORE, in consideration of the foregoing recitals and the covenants and promises
contained herein, and for other good and valuable consideration, the receipt and sufficiency of
which is hercby
hereby acknowledged, the parties hereto agrec
agree as follows:
Article 2 - Scope of Work.
The Contractor shall continue to perfonn

perform additional services as detailed in the
original contract.
Contract NU.
Nu.:21998
:21998
Paragraph 1I of Article 3(a) Compensation and Payment, is hereby amended to

read as follows:
(a) Cost Limitation. The total amount payable by the Agency under this Agreement shall
not exceed Three Million and Sixty Thousand Dollars ($3,060,000.00) inclusive of applicable
gross receipt tax ("Cost Limitation Amount"). The Cost Limitation Amount is a maximum and
not a guarantee that the Contract Manager will assign the Contractor any tasks, or that the work
to be performed will equal the Cost Limitation Amount. The Contractor shall be paid based
upon the Cost Schedule attached as Exhibit A hereto and made part hereof.
All terms, covenants, and conditions contained in the Original Contract, and not modified herein
shall remain in full force and effect. This Amendment shall not become effective unless and
until approved by the General Services Department/State Purchasing Division (GSD/SPD
Contracts Review Bureau).
Signatures on Page 3
2
Contract No.:21998
IN WITNESS WHEREOF, the parties have entered into this Amendment No. 3 to the Price
Agreement effective as of the date of execution by General Services Department/State
Purchasing Division (GSD/SPD Contracts Review Bureau).
By:
AGENCY
By:
RolfS hmidt-Petersen, . ., Director
NM In erstate Stream Commission
Date: -~w~ _________
Approved as to bud~t
suf~ciency:
Date: 8/5/20
By: - -- - ----- ---------
Jeff Primm, irector
Approved by Agency CFO:
By: -Jennif~ -:: Date: - -08/05/2020

----
Approved as to legal fonn •~ fficicncy:

By: -11AJ chJ . Date: 8/4/2020
ISC General Counsel
TAXATION AND REVENUE DEPARTMENT
The records of the Taxation and Revenue Department of the State of New Mexico reflect that
Contractor is registered with the Taxation and Revenue Department to pay gross receipts and
compensating taxes.
Taxalion and Revenue I! only verll\'lng the registration
and will not confirm or deny taxability statements
contained In this contract
ID Number: 01-867140003
By: Date:
By: Date: 08/27/20

GSD/SPD
3
GSD CONTRACTS REVIEW BUREAU PROFESSIONAL SERVICES CONTRACT BRIEF

Joseph Montoya Building, Rm 2016 CRB, Revised 02120
Santa Fe, NM 87505 (CONTRACT BRIEF MUST BE TYPED)
[2 [f) [II}]] ] I2 I 9 I 9 I 8 I [TJ -

3)
FY Agency Code Organization Code Contract No. Amend. No.
Contractor Name: Montgomery Andrews Law Firm

Contractor Address: _3:::.:2~5.:.P.=.
as=.:e;,;:o=-d=-=e..:..P.=.
er:..::a::.::
lta=-S=-=a:..:.cn:.::
ta:...:F...:e~
,N
,.:.;M
. :.;________ Phone: 505·986·2637
A ency Con t ac:
t SJ erome Baros . .
Ph one: 505 827 6177
Single-Year Contract: Appropriation Period: Contract or Amendment Amount:
$ Total Contrac:t Amount 21 General Fund 1,500 000.00
Multi-Year Contract: Other State Funds 0.00
- $ 3,080,000.00 Total Contract Amount Federal Funds 0.00
Total s 1,500,000.00
Contract Term: From: I o I 5 I I I o I 9 I I I 2 I o I 1 I 9 I To: I o I 4 I t I 3 I o I I I 2 I o I 2 I 3
Retroactive: YIN
Non-profit: YIN
B
(GSD Approval dale to be Oiled In by Contracts Review Bureau)
Date: r- Cl c==r=:J r-rJ=o I
(TermlnaUon Dale)
I
r. Operational Budget r Capital Outlay

BRIEF DESCRIPTION OF SERVICES AND/OR REASON FOR AMENDMENT:
Provide comprehensive legal advice and counsel including but not limited to: litigation support and representation of the Agency
before state administrative and federal courts in the areas of water and environmental law, provide legal advice and counsel to the
Agency regarding Office of the State Engineer water rights administration
PROCUREMENT PROCEDURE·Check with X the applicable citation

_ _ _ Section 13·1·125 NMSA 1978, small purchase contract (does not exceed $60,000 excluding gross receipts tax).
--:-:-- Section 13·1·120 NMSA 1978, competitive proposal for architectlengineerllandscape/archltectlsurveyor.
X Section 13·1·111 NMSA 1978, competitive sealed proposal (contract over $60,000).
_ _ _ Section 13·1·129 NMSA 1978, contract is based upon Price Agreement#
_ _ _ Section 13·1·129 NMSA 1978, contract is based upon GSA (please provide all required information)
Section 13·1·126 NMSA 1978, sole source procurement (requires written determination and GSD approval).
Section 13·1·127 NMSA 1978, emergency procurement.
REQUIREMENTS-Enter Y (yes) to verity the following mandatory requirements:
Y The agency certifies to GSD that all relevant requirements of the Procurement Code have been followed.
Y The agency certifies to GSD that the contractor will perform at ali times as an independent contractor for the purpose of IRS lax
compliance and is not performing saNices as an employee ofthe agency.
Y The agency certifies to GSD that the agency has performed a legal review and the contract Is In compliance with all federal and state
l~ws._rul~an_!lreg ulallo_!ls. _ __ _ _ ·-- _ _ _ __
_OTHER REQUIREMENTS-Enter Y ( es , N no or N/A not aP..r::.;l~ lc.=.
ab::.:.le~to:.,e;.;:a~
ch:'-o~f,..:.th:.:..:e:.:..:f.::c
ol7 1o:.::
w.;.:,
ln~: -,---;;-;---:;----.--:-:~---;---c---
y The agency certifies to GSD that Performance Measures have been outlined as required (attach valid section of strategic plan).
Y The agency certifies to GSD that the contract complies with GSD rules regarding indemnificaUon and insurance.
N The agency cerUfiesto GSD that the requirements of the Govemmentai Conduct Act, Section 10.16·1 NMSA 1978 regarding conflict
of Interest with public officers or slate employees have been followed. The agency certifies to GSD that the Allomey General's
_ _ _ review has been obtained because:
D
Contract with former 11 Ia am~loyee D Contrac!W!III pruenl state amp oyae
y The agency certifies to GSD that any required performa ce~ d~ e been obtained, Section 13·1·148 NMSA 1978
ISC Dir le'!cill- · '\._ 08/0712020
11~~
Cabinet Secretary, Agency Head or Designee Title Date r
~~
GSD USE ONLY l
Category ~Date Rocolvod CRB Comments:
Status
Amendment Type
Date Approved CRB
Staff
1
I I
I I
Amendment Type
. PURCHASE DOCUMENT
Number Amount Date to FCD Date from FCD
DEPARTMENT OF FINANCE AND ADMINISTRATION

AGENCY CERTIFICATION
OFFICE OF THE STATE ENGINEER hereby certifies the following in regard to the attached contractual
agreement between the Agency and Montgomery & Andrews Law Firm;
1)
I) This Contractor is NOT a former state employee.
employee.**
2) This Contractor is NOT a current state employee or a legislator or the family member of a current
state employee or legislator, or a business in which a current state employee or legislator or family
member of the current state employee or legislator has an interest of greater than 20%.*
PLEASE NOTE: No contract may be clwoirded

ciW.trded to a current state employee
cmployee or legislator, or tu
to a family member ora
of a current state employee or
legislator, or to a business in which any of these persons has 11n
lin interest greater than 20% unless such euntract
contract is awarded pursuant to the
Procurement Cude, e:tccpt such persons or busines~es
Code, e)lcept businesses cannot be 11w11rdcd
IIwllrded a contract through a sole source or small purchase. (Sec Sect inn 10-
I 0-
16-1 through 10-16-1R
10-16-IR NMSA 197Rl97R for further inronnation.)
infonnation.)
3) This Contractor is a (check one): FOR PROFIT VENDOR xX

NOT FOR PROFIT VENDOR
4) This PSA DOES COMPLY with the Governor's Guidelines for Contract Review and Re-Evaluation and
IS an essential contract for the Agency.
I certify that the information stated in paragraphs 1-3 is true.
_. -- ~--/-
-·
Date
~ (.-.~7..''1-f //_
2Zo0
*If the Contractor is covered by one of these categories, please contact your CRB Analyst for the required
procedures for processing.
**Must be an authorized signatory for the Agency.

CAMPAIGN CONTRIBUTION DISCLOSURE FORM
Pursuant to the Procurement Code, Sections 13-1-28, et seq.,

seq .. NMSA 1978 and NMSA 1978, 1978. § 13-1-
191.1 (2006), as amended b Laws of2007 Cha ter tcr 234 any prospective contractor seeking to enter into
a contract with any state agency or local public body for professional services, a design and build
project delivery system, or tbe design and installation of measures tbe primary purpose of wbicb is
to conserve natural resources must file this form with that state agency or local public body. This form
must be filed even if the contract qualifies as a small purchase or a sole source contract. The prospective
contractor must disclose whether they, a family member
membcr or a representative of the prospective contractor
has made a campaign contribution to an applicable public official of the state or a local public body
during the two years prior to the date on which the contractor submits a proposal or, in the case of a sole
solc
source or small purchase contract, the two years prior to the date the contractor signs the contract, if the
aggregate total of contributions given by the prospective contractor, a family member or a representative
of thc prospective contractor to the public official excceds
the prospectivc exceeds two hundred and fifty dollars ($250) over the
two year period.
Furthermore,
Furthermore. the state agency or local public body may cancel a solicitation or propos cd award for a
proposed
proposed contract pursuant to Section 13-1-181 NMSA 1978 or a contract that is executed may be ratified
or terminated
tcrminated pursuant to Scction NMSJ\ 1978 of the Procurement Code if: 1)
Section 13-1-182 NMSA I) a prospective
contractor,
contractor. a family member of the prospcctivc
prospective contractor, or a representative of the prospective
contractor gives a campaign contribution or other thing of value to an applicable public official or thc
the
applicable public official's employees during the pendency of the procurement proccss
process or 2) a prospcctive
prospective
contractor fails to submit a fully completed disclosure statcment
statement pursuant to the law.
The state agency or local public body that procures the services or items of tangible personal propcrty
Thc property
shall indicate on the form the name or names of every applicable public official,
official. if any, for which
disclosure is required by a prospective contractor.
THIS FORM MUST BE INCLUDED IN THE REQUEST FOR PROPOSALS AND MUST BE FILED
BY ANY PROSPECTIVE CONTRACTOR WHETHER OR NOT THEY.
THEY, THEIR FAMILY MEMBER.
MEMBER,
OR THEIR REPRESENT ATlVE HAS MADE ANY CONTRIBUTIONS SUBJECT TO DISCLOSURE.
The following definitions apply:
"Applicable public official" means a person elected to an office or a person appointed to

completc
complete a term of an elected office, who has the authority to award or influence
the award of the contract for which the prospcctive
prospective contractor is submitting a
competitive sealed proposal or who has the authority to negotiate a sole sourcc
source or
small purchase contract that may be awarded without submission of a sealed
competitive proposal.
"Campaign Contribution" means a gift, subscription, loan, advance or deposit of money

or other thing of value, including the estimated value of an in-kind contribution.
contribution, that is made to or
received by an applicable public official or any person authorized to raise, collcct
collect or cxpend
expend
contributions on that official's behalf for the purpose of electing the official to statewide or local
office. "Campaign Contribution" includes the payment of a debt incurred in an election
campaign. but does not include the value of services providcd
campaign, provided without compensation or
unreimbursed travel or other pcrsonal
personal cxpenses
expenses of individuals who volunteer a portion or all of
their time on bchalf
behalf of a candidate or political committee, nor does it include the administrative or
solicitation expenses of a political. committee that are paid by an organization that sponsors the
committee.
"Family member" means spouse, father, mother, child, father-in-law, mother-in-law,

daughter-in-law or son-in-law of (a) a prospective contractor, if the prospective contractor is a
natural person; or (b) an owner of a prospective contractor.
"Pendency of tbe procurement process" means the time period commencing with the
public notice of the request for proposals and ending with the award of the contract or the
cancellation of the request for proposals.
"Prospective contractor" means a person or business that is subject to the competitive

sealed proposal process set forth in the Procurement Code or is not required to submit a
competitive sealed proposal because that person or business qualifies for a sole source or a small
purchase contract.
"Representative of a prospective contractor" means an officer or director of a

corporation, a member or manager of a limited liability corporation, a partner of a
partnership or a trustee of a trust of the prospective contractor.
Name(s) of Applicable Public Official(s) if any:
Michelle Lujan Grisham, Governor

Brian S. Colon, State Auditor
DISCLOSURE OF CONTRIBUTIONS BY PROSPECTTVE CONTRACTOR:
Contribution Made By:
Relation to Prospective Contractor:
Date Contribution(s) Made:
Amount(s) ofContribution(s)
Nature of Contribution(s)
Purpose of Contribution(s)
(Attach extra pages if necessary)
Signature Date
Title (position)
--OR-
NO CONTRffiUTIONS IN THE AGGREGATE TOTAL OVER TWO HUNDRED FIFTY

DOLLARS ($150) WERE MADE to an applicable public official by me, a family member or
representative.
Signatu
_vjc£ ~ 6sesr ~
Title (Position)
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is entered into effective April 27, 2017
between the Regents of the University of
ofNew
New Mexico ("UNM"), for the Office of University
Counsel (nUNM
("UNM OUC n
OUC"),), and Bruce D. Black LLC ("Investigator").
RECITALS
A. The UNM is in need of a quality investigation and report (Investigation) as

described in Attachment A. The investigation is requested by the UNM OUC and
is to be done on a confidential basis and is intended to be subject to the attorney-
client privilege and the attorney work product privilege.
B. Investigator is willing to provide quality services to UNM OUC for the benefit of
the UNM under the terms and conditions set forth in this Agreement.
The parties agree as follows:
I. SERVICES
A. Investigator conduct the comprehensive Investigation described in Attachment A.
B. Investigator will travel to the UNM campus in Albuquerque, New Mexico to

conduct the on-site portion of the Investigation. It is anticipated and expected that
the onsite portion of the Investigation will take no longer than 5 days and will be
completed no later than May 19, 201 7.
C. The UNM will provide to Investigator the records and documents necessary to
perform the Investigation. All originals of documents provided to Investigator
will be returned to the UNM upon completion of the Investigation.
D. Investigator will conduct interviews, including, but not limited to those

individuals listed in Attachment B. Investigator has the option to interview any
additional individuals, as appropriate, to complete the Investigation.
E. Investigator will submit a confidential report (the "Report") of findings to UNM

OUC, subject to the attorney-client privilege, attorney work product privilege for
review. The Report will include Investigator's conclusions related to the
Investigation as further described in Attachment A and recommendations for next
steps, as further described in Attachment A.
1
F. Investigator, in providing services pursuant to this Agreement and in providing

the Report to the UNM OUC, is performing consulting services for the UNM, and
shall abide by all confidentiality requirements and be entitled to all the privileges
and immunities afforded by all applicable federal and state laws and regulations.
II. COMPENSATION
UNM will compensate Investigator for the Investigation contemplated in this Agreement
at a rate of$200/hour
of$200lhour up to a maximum of$IO,OOO.
of$10,000. UNM will reimburse Investigator at
cost for lodging, meals and travel expenses incurred in accordance with UNM's
UNM' s travel
reimbursement policy, a copy of which is attached to and incorporated in this Agreement
as Attachment C. Compensation will be paid by UNM to Investigator on a
reimbursement basis within 30 days after receipt of an original invoice, including original
receipts, if applicable, for the Investigation provided by Investigator under this
Agreement. In no event will total compensation under this Agreement exceed $12,000.
III. CONFIDENTIALITY
A. All communications between Investigator and UNM OUC, as well as any

materials or information developed or received by Investigator pursuant to this
Agreement, whether oral or written, are protected by applicable legal privileges
and, therefore, will be treated by Investigator as confidential. Accordingly,
Investigator agrees, subject to applicable professional standards, laws or court
order, not to disclose any of its communications, or any of the information it
receives or develops in the course of its work for UNM OUC, to any person or
entity apart from UNM OUC or such other persons or entities as UNM OUC may
designate. Any written materials prepared by Investigator for the purposes of the
consultation and Investigation contemplated by this Agreement will be
confidential material, prepared solely for the purposes of anticipated litigation and
will remain the property ofUNM oue. OUC. Any use of such information for other
than the express purpose for which it is provided is prohibited.
The confidentiality of UNM' s student records will be maintained by the parties in

accordance with applicable federal and state laws and regulations.
Investigator and UNM will not disclose the compensation payable to Investigator
pursuant to this Agreement, except to the extent required by applicable laws or
regulations or as may be required to carry out the terms of this Agreement.
2
IV. RECORDS
A. All data, including oral interviews, and documents relating to the subject matter of
the Investigation acquired by the Investigator and other individuals performing
the Investigation shall be held in confidence and shall not be disclosed to anyone
except to the extent necessary to carry out one or more of the purposes of the
Investigation.. No person shall disclose what transpired at a meeting with the
Investigator except to the extent necessary to carry out one or more of the
purposes of the Investigation. Information, documents or records otherwise
available from original sources shall not be immune from discovery or use in any
civil action merely because they were presented during the Investigation, nor shall
any person who participated in the Investigation or who is a member of the
Investigator be prevented from testifying in court as to matters within him or her
knowledge within the extent permitted by law, but a witness cannot be asked
about opinions formed by him or her as a result of the investigation ..
B. Investigator will maintain appropriate records and receipts required to justify the
amount of reimbursement billed by Investigator to UNM oue.OUC.
C. UNM and Investigator will maintain auditable records for this Agreement at all
times and for at least four years after this Agreement is terminated.
V. RELATIONSHIP OF PARTIES
Investigator will perform professional services under this Agreement as an independent
contractor. Nothing contained in this Agreement will be deemed or construed to make
UNM or any of the employees ofUNM an agent, employee, servant, partner or joint
venturer of, or with, Investigator.
VI. TERM AND TERMINATION
A. Term. This Agreement will be effective as of the date first set forth above, and
will terminate on June 30, 2017, unless renewed by written agreement of the
parties or earlier terminated as provided below.
B. Termination
1. Termination without Cause. Either party may terminate this Agreement
at any time with or without cause by delivering written notice to the other
party at least 30 days in advance of the proposed date of termination.
2. Termination with Cause. Either party may terminate this Agreement for
cause based upon a material breach by giving written notice to the other
party at least 15 days in advance of the date of termination proposed in the
3
notice. The notice of termination for cause will not be effective if the
breaching party cures the breach to the reasonable satisfaction of the other
party within the 1S-day
15-day notice period.
C. Effect of Termination. Upon termination of this Agreement, neither party shall

have any further obligations under this Agreement, except for obligations
contained in this Agreement that expressly extend beyond the term of this
Agreement.
VII. MISCELLANEOUS
A. Entire Agreement. This Agreement represents the entire understanding between
the parties and supersedes any prior agreements or understandings with respect to
the subject matter of this Agreement.
B. Waiver of Breach. The waiver by either party ofaof a breach or violation of any
provision of this Agreement will not operate as or be construed as a waiver of any
subsequent breach of this Agreement.
C. Modifications. No changes, amendments or alterations to this Agreement will be

effective unless in writing and signed by both parties.
D. Non-Assignability. This Agreement will not be assigned by either party, nor will
the duties imposed upon either party by this Agreement be delegated,
subcontracted, or transferred by either party, in whole or in part, without the prior
written consent of the other party.
E. Governing Law. This Agreement will be construed, interpreted, governed and

enforced in accordance with the statutes, judicial decisions, and other laws of the
State of New Mexico.
F. Severability. The invalidity or unenforceability of any term or provision of this

Agreement will in no way affect the validity or enforceability of any other term or
provision to the extent permitted by law.
G. Third Parties. Nothing in this Agreement, express or implied, is intended to

confer any rights, remedies, claims, or interests upon a person not a party to this
Agreement.
H. Notices. Any notice required to be given pursuant to the terms and provisions of
this Agreement be in writing and will be sent by certified mail, return receipt
requested, postage prepaid, as follows:
4
ToUNMOUC: Elsa Kircher Cole, University Counsel

Office of University Counsel
MSC053440
MSC05 3440
1 University of New Mexico
Albuquerque, New Mexico 87131-0001
To Investigator: Bruce D. Black LLC

804 Viejo Rastro
I. Binding Effect. This Agreement is binding upon, and inures to the benefit of, the
parties to this Agreement and their respective successors and assigns.
INVESTIGATOR:
Date: '1- ~ h6 - / 7
'f-
REGENTS OF THE UNIVERSITY OF NEW MEXICO,
By~~
BY~~
Bruce Cherrin
Date: j,. z..
Z.. ..• 11
Director, Purchasing Department
and
By ~ ~ tI-<-t-
tJ-<_,_ Date: 5 -2 ... 1.-,
'-'
Elsa Kircher Cole
University Counsel
5
ATTACHMENT A
Scope of Services
1. Investigate and determine the accuracy of the following anonymous complaint received
18, 2017 through the University of
April18,
April ofNew
New Mexico "Hotline Phone":
"Jack (Regent Fortner) required Bob Frank, former president, to throw a catered party at Bob's
house, in which Jack made the staff work. Jack required the staff, bookstores, and athletic
department to donate gifts. The invitation list was sent to students from San Juan County, which
is Jack's part of the state. Jack threw this event while he was running for County Commission
(sic). The students were introduced to influential people, and the university picked up this bill.
The caller has seen the invoices and spoke with the staffwho
staff who was (sic) forced to work at the
event."
2. Investigate and determine the accuracy of the following anonymous complaint received
25, 2017 through the University of
April25,
April ofNew
New Mexico "Hotline Phone":
"In October 2015, Jack threw a party at Bob Frank's, president of New Mexico University, (sic)
house as a personal political 'fundraiser' using state funds and his power as a regent to benefit
himself personally. This was done prior to Jack running for county commissioner, which gave him
access to 'powerful people.' Jack schedules meetings to coincide with his daughter's softball
games so that the state pays for his plane use."
Mechanisms for conducting the investigation are anticipated to include one-on-one interviews
with president's office staff, University administrators, regents and student participants, as
appropriate; review of UNM documentation regarding the event, including invitations, emails
and receipts; review of existing UNM policies addressing Responsibilities of the Board of
Regents, Regent Code of Conduct and Conflicts of Interest, Removal of Members of the Board,
and Political Activity of Employees; review of applicable law including the Antidonation
Antidonation Clause
of the New Mexico Constitution (Art. IX, Sec. 14) and Disqualification from Holding Office,
Art. 8, Sec. 4.
3. Prepare a written report describing the results of this investigation with recommendations
for further steps, e.g., report to civil and/or criminal authorities, report to the Disciplinary
Board of the New Mexico Supreme Court.
The timeline for completing this project is no longer than 60 days from the date of engagement.
6
ATTACHMENT B
List of Witnesses
Antonette Martinez, Event/Special Project Coordinator
Mitch Garrity, Executive Administrative Assistant to the President
Amy Wohlert, President's Chief of Staff
Robert Frank, Former President
Jack Fortner, Regent
Attendees at Event
7
Time sheet for Athletic Department Investigation
.2
.4
3.5
.8
.8
.7
3.9
1.4
.8
.6
9-1 ~ .2
4.5
2.2
5.5
8.5
.6
I
8.8
.4
.2
.1
.2
.1
.7
.6
.4
.3
.2
.1
7.0
.5
.2
5.5
.3
3.0
.1
.2
.4
1.1
Billable Hours 65
x$200 $13,000
+Gross Receipts Tax@ 8.3125 $1,080.63

$14,080.63
+ MILEAGE
8-28 RT ABQ. 32.10
9-12 RT ABQ. 32.10
9-13 RT ABQ. 32.10
9-14 RTABQ. 32.10
9-15 RT ABQ. 32.10
9-18 RT ABQ. 32.10
10-12 RT ABQ. 32.10

10-18 RT ABQ. 32.10
10-30 RT ABQ. 32.10
11-20 RT ABQ 32.10
$321.00
+$14,080.63
TOTAL BILL $14,401.63
Glossary of Abbreviations
RIM review incoming material
C correspondence
TT telephone to
TF telephone from
RT round trip
Report to Office of University Counsel of the New Mexico

University
Scope of Review
On April 27 2017, Bruce D. Black LLC, (Investigative Counsel) was engaged by the
Office of University Counsel for the University of New Mexico to conduct an
investigation into the following anonymous allegations received on the University
hotline and by Twitter against University Regent Jack Fortner (“Fortner”):
(1) Fortner required Bob Frank, former President of the University of New Mexico
(“the University”), to throw a catered party at the President’s house, which Fortner
directed the University staff to create and implement. (“The event”). Only students
from San Juan County were to be invited. This event was allegedly conducted while
Fortner was running for a position on the San Juan County Commission; and (2) Regent
Fortner charged the University to fly his private airplane to his daughter’s softball
games at the University (“travel reimbursements”).If evidence of wrongdoing or
unethical conduct was uncovered, Investigative Counsel would identify the individuals
involved and make recommendations to remedy any problems or gaps in current
University processes.
This report was prepared exclusively for the Office of the University Counsel and no
advance copy of this report has been provided to anyone. The information in this
report was gathered pursuant to New Mexico’s attorney-client privilege, NM. R. REV.
Rule 11-501 et. seq. and the attorney work product privilege, giving due consideration
to the privacy of the interviewees and the documents reviewed.
1
Methodology
To investigate the allegations Investigative Counsel:
• Interviewed 12 individuals currently employed by the University as well as the
former University President, Robert Frank and Regent Fortner.
• Interviewed 4 people responsible for University Regents” scheduling and
processing of their travel reimbursements including Regent Fortner;
• Reviewed the financial and accounting records and policies of the University
regarding both the Event and Fortner’s travel reimbursements;
• Considered how and when the event and travel reimbursement were first
called into question and what steps, if any, were taken to address the situation.
Investigative Counsel also reviewed pertinent statues and University guidelines
including the following documents:
• The Regents’ Policy Manual Section 1.1, Responsibilities of Regents;
• Regents’ Policy Manual –Section 1.2 Structure of the Board of Regents
• The Antidonation Clause of the New Mexico Constitution (Article IX, Section
14);
• New Mexico Statue NMSA 10-8-4 Per diem and mileage rates
• New Mexico Department of Public Finance Regulation Travel and Per Diem, 2
NMAC 42.2
• Administrative Policies and Procedures Manual-Policy 4030: Travel
2
• The Regents’ Policy Manual, Section 1.8, Regent Code of Conduct and
Conflicts of Interest;
• The Regents Policy Manual, Section 6.5, Political Activity by Employees;
The Event
Investigative Counsel interviewed 12 current University employees as well as
former President Frank and Regent Fortner regarding this event.
Several interviewees indicated that President Frank often used his residence
(University House) for entertaining and this included certain student groups (e.g.
regents’ scholars, athletic scholars, international students etc.). While Regent Fortner’s
request to host an event for San Juan County students was somewhat unusual,
President Frank had discussed the possibility of focusing on students outside the Rio
Grande Corridor with at least one staff member in the past. It was generally thought
that potential students in these areas tended to focus more on Texas, Arizona and
Colorado institutions to the detriment of the University.
The University also has a branch campus in Farmington and by inviting students
from this branch as well as the main (Albuquerque) campus it would encourage more
of the Farmington students to be less intimidated about continuing their studies at the
main campus. Regent Fortner had previously put on events for Branch students at his
house to this end. Discussions had also been held in the past about holding events for
students on main campus who had begun their studies at the Gallup and Taos
branches. Both President Frank and his staff were therefore willing to inaugurate this
program with an event focused on San Juan County students.
3
After several attempts to set a date, President Frank and Regent Fortner settled on
October 1,2015. This date was fairly early in the semester and allowed the event to
have the benefit of a large outdoor tent that would be used for 3 other events at the
University House that week. However this made it difficult on Mrs. Frank as hosting 3-
4 major events in a week is quite challenging. Mrs. Frank selected the caterers for all
events at University House and generally rotated them.
The appropriate events coordinators from the Regent’s and President’s Offices
started making a guest list and planning the event 2-3 weeks in advance. Both said it
was unusual for a Regent to have a “hands on” role but otherwise the planning was
routine. An email invitation was created on the usual President’s template and sent to
all students who qualified (approximately 60-65). (Exhibit A).
Approximately 25-35 students attended. Baseball Coach Ray Birmingham gave an
inspirational speech on the value of the University and the educational benefits of
matriculating there. President Frank and Regent Fortner circulated freely and met all
or virtually all the students. Regent Fortner and the University staff set up several
games and awarded University memorabilia and restaurant gift certificates as prizes.
One of the staff remembered that on the last game Regent Fortner took a $100 bill out
of his wallet and awarded it to the winner of the final contest.
The University Bookstore has a policy of donating no more than $75 to any one
event. The donation to this Event was $68.32 in the form of T-shirts and a polo shirt.
(Exhibit B) The Regent’s Fund also purchased $200 in gift cards from Wise Pies Pizza.
(Exhibit C) There seems to some confusion about some Frontier Restaurant gift
certificates were also purchased but there is no paper work to support a purchase and
4
at least two people remembered they were donated. University Communication and
Marketing also donated various excess items from their surplus closet (e.g. Louie
bobble heads, sunglasses, and decals) for door prizes. (Exhibit D) Flowers for the
event were purchased for $ 300.00. (Exhibit E) Food was provided by the UNM
Student Union Building and cost $ 694.00. (Exhibit F)
Regent Fortner was not standing for election in 2015. A check of the San Juan County
records shows he was re-elected County Commissioner in 2012 for a term ending in
2016.
Private Plane Travel
Regent Fortner, who lives in Farmington, owns a private plane and frequently uses it
to travel to various University proceedings and events. The University travel policy
follows the Internal Revenue Service guidelines and permits such travel at specified
rates per mile. In 2015 this was $.56 per mile for vehicle travel and $.88 per mile for
private air travel. 1 Given the shorter straight-line distance, private air travel was
compensated at $264 for the round trip from Farmington, while vehicle travel was
reimbursed at $203.
The “tweets” from an anonymous source “@NewUNMLeaders” alleged that:
• On 4/3/15 Fortner billed the University to fly his plane to meet University
Dean David Harris and his daughter played softball against Nevada that same
day;
1The University requires employees to take commercial flights if they are cheaper.
However round trip commercial travel from Farmington to Albuquerque during this
period was $1000-1200 so that alternative is irrelevant in this instance.
5
• On 3/24/15 Fortner flew his plane to meet with President Frank and his
daughter played NMSU that day;
• On 3/6/15 Fortner flew to Albuquerque to meet Regent Hosmer and his
daughter also had a softball game at the University on that same day;
Investigative Counsel has reviewed each of the direct pay approvals for the dates in
question (Exhibit G). The administrative assistant (AA) for the Regents as well as one
of the assistants to the Executive Vice President each explained the process and
provided documents. When Fortner presented his travel form for the April 3, 2015 trip
(Exhibit H) the Regent’s assistant sent it to the Vice President’s office. One of the AAs
to the Vice President then attached a copy of the April 3, 2015 calendar for Harris
showing a meeting with Fortner and sent it accounting. (Exhibit I) Since this AA had
problems with unrestricted accounting in the past, she wrote a hand written note next
to the meeting with with Agent Fortner saying “ Meeting w/ EVP David Harris to
discuss University business.” (Exhibit J) When accounting returned the summary of
Fortner’s April travel, Harris singed off on it. (Exhibit K)
Vice President Harris originally said he remembered no such meeting with Fortner
but when shown his contemporaneous calendar with the notes from his AA he said the
meeting obviously happened. Harris said his signature on the monthly travel vouchers
was pro forma and the Regents basically police themselves. However based on his past
interactions he said he could not imagine Fortner “cheating on his travel voucher.”
There is also adequate documentation to support the March 6, 2015 campus meeting
with Regent Hosmer. A memo from the Regent’s AA dated March 25, 2015 confirms
Fortner flew to Albuquerque for meeting with Regent Hosmer on March 6, 2015.
6
(Exhibit K) The calendar for the Regents’ Conference Room (#141 Scholes Hall) also
shows it was reserved for a meeting between Regents Hosmer and Fortner on Friday
March 6, 2015 (Exhibit L).
Finally University documentation also supports a March 24, 2015 meeting between
Fortner and former President Frank. President Frank’s calendar for March 24 shows a
meeting with Fortner at 3 p.m. (Ex. M) There was also Harris approved supporting
travel reimbursement approvals (Exhibits G and K).
Legal Analysis
The New Mexico Constitution, Article IX, Sec. 14, prohibits the State from making
“any donation to or in aid of any person”. This is commonly called the anti-donation
clause. It has generally been invoked to prevent the designation of State funds to
charitable organizations like the 4H, Boy Scouts or a chamber of commerce. 1990 Op.
Atty. Gen. No 90-13. Clearly this would disallow the University from expending funds
to reimburse Regent Fortner for air travel solely for trips from Farmington to watch
his daughter play softball if he was not also engaging in legitimate University business
on the same trip.
There is however no evidence to support the allegations advanced in the
anonymous tweets. To the contrary all the evidence leads to the conclusion that
Fortner engaged in legitimate University business on each occasion charged in the
tweets. Like the other standing committees, audit required three Regents to be on the
committee and a quorum consists of a majority of the members. Regents’ Policy
Manual Section 1.2
7
The Director of the Internal Audit, Manu Patel, said he was charged with scheduling
Regents’ Audit and Compliance committee meetings. Since Fortner was the chairman
of this Committee, Patel scheduled the meetings to coincide with home softball games.
After unsuccessfully trying to schedule several Audit Committee meetings Patel said he
concluded the only way to guarantee Fortner’s presence at spring audit committee
meetings was to schedule them to coincide with home softball games. Several of those
interviewed also said it was general practice to schedule meetings to overlap times
when Regents would on campus for other events. This was particularly true of
meetings scheduled by the Regents themselves.
Regents Policy Manual Section 6.5 governs political activity by employees. It
provides inter alia, that “the University shall not be an instrument of partisan political
action.” Political activity is defined as “without limitation, political campaigning,
candidate speeches and visits, circulating petitions, distributing leaflets, canvassing for
political candidates and issues, soliciting funds, and events such as rallies, assemblies,
demonstrations, and speeches.” The original hotline complaint alleged that the October
1, 2015 event was conducted while Regent Fortner was running for San Juan County
Commissioner. While it is unclear whether having a University dinner for Albuquerque
student would run afoul of this provision even if Fortner was up for election,
investigation on the San Juan County website indicated he was not up for election in
2015.
State Senator Mark Moores (R. Bern.) also attended the event at the invitation of
Regent Fortner. Fortner said he invited the Senator as an example to the students of
how they could benefit from a UNM degree. Both Fortner and Moores were introduced
8
with their “political titles” but according to all who attended the event neither said
anything political and merely spoke about their great experiences at the University and
neither was running for reelection in 2015.
Regents’ Policy Manual-Section 6:4 Regent Code of Conduct and Conflicts of

Interest Policy requires the Regents:
“to perform their duties faithfully and efficiently and never give rise to the
suspicion of improper conflict with interests of the University…They may not
use their positions to enhance their direct or indirect financial interest or use
confidential information learned as a Regent for anyone’s private gain.”
Obviously the anonymous source that tweeted as New UNM
Leadership@NewUNMLeaders attempted to convey the belief that Regent
Fortner “used his Regent position to get @UNM to pay private flight to daughter’s
softball games.” If Fortner had used his Regent’s position solely to pay for the
private purpose of watching his daughter’s softball games this could certainly be
seen as a use of his position to enhance his own financial interest.
As explained above however, Regent Fortner only came to the main University
campus when he had University business to conduct. Moreover as he explained
since such business usually took more than one day and it was not economically
feasible to tether the plane in Albuquerque overnight it was returned to
Farmington each day and therefore required to make two trips even though he
was only being reimbursed for one. Fortner also bought a condominium in
Albuquerque so he did not seek any reimbursement for lodging. Nor did he
charge the University the per diem to which he was entitled under
Administrative Policies and Procedures Manual-policy 4030:Travel and
NMSA 10-8-4 (2016 Supp).
9
Conclusions and Recommendations
The Confidential Investigation revealed no evidence of any violation of New
Mexico or federal law. Nor did the Investigator find a violation of any of the
University Policy Manual provisions reviewed.
The use of public media to broadcast such anonymous allegations and the
inevitable substantial and costly investigations that follow is however, troubling.
It is recommended that the University Regents not be allowed such wide leeway
in “policing themselves” as Executive Vice President Harris put it. While the paper
trail in this case was maintained meticulously by the AAs involved, the lack of
public transparency of Regent activities and reimbursement allowances will
continue to allow anonymous sources to raise questions and allegations like
those involved here. The Confidential Investigator recommends that an annual
summary of all Regent activity be made available publically to avoid the
reemergence of similar charges in the future.
10
University Investigation Time Sheet
Hours
Sunday April 30 2.0
Monday May 1
4.5
Tuesday May 2
Wednesday May 3
Thursday May 4 .5
Saturday May 6 .2
Wednesday May 10 .9
Friday May 12 2.0
Monday May 15 .4
Wednesday May 17 4.0
Thursday May 18 2.0
Saturday May 20 3.5
Sunday May 21 1.0
Monday May 22 .5
21.5
x $200
___________
$ 4300
Gross receipts x 7.3%

________
$313.90
+4300.00
____________
$ 4613.90
Mileage 2 trips to Albuquerque

2 x 60= 120 $ 64.20
______________
Total $ 4678.90
REQUEST FOR OUTSIDE COUNSEL

APPROVAL FORM
To be filled out by the department requesting counsel.
UNMIUNMH Department responsible for payment? 0 (,(. c_ Index to be charged? - 2 \ 3 o o o

A~arneM
Name of baw Firm\ requested to be engaged: B r (.{c.~ l). ~l.t\.ck.
Narne of individual lawyers staffing the engagement: ~ ee- t:t b fJ "e..

0 Partner 0 Associate D Partner D Associate
D Partner 0 Associate 0 Partner 0 Associate
Reason why outside counsel is needed for this engagement:
D Litigation 0'Legal Expertise D Workload D Conflict of Interest
Provide precise Scope of Work performed by Outside Counsel, including agreed-upon Budget. If circumstances
preclude providing budget at this time, please explain these circumstances. Please attach sheet(s), as needed.
Se€. «.ttacJr"e.J Cc!Mt-ttn.d- ~ C.erv('c.e.s
N arne of Dean/Director seeking to engage outside counsel: t:':l ~ 2-A. b e.th W &LS h. hL<.'(' n
Signatu~ t .A.. ) a . . . . - . - -
Date
To be filled out by Office of University Counsel.
If this is a litigation/arbitration matter, have you communicated/negotiated:
D Need to have a detailed, written litigation plan?

D A budget for discovery? If so, how much?
D A budget for motion practice? If so, how much?
D A budget to take the matter to trial? If so, how much?
D Need to have monthly status reports?
APPROVAL/DISAPPROVAL:
University Counsel: [11 Approve D Disapprove
S:· .2.-s;. {7
Signature of University Counsel Date
APPROVALIDISAPPROVAL:
Preside~J:2~e mprove
SignatureGunivcrsity President J£. Rev 11/10/11
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement ("Agreement") is entered into effective August 25,2017
25, 2017
between the Regents of the University of
ofNew
New Mexico ("UNM"), for the Office of University
Counsel ("UNM OUC"), and Bruce D. Black LLC ("Investigator").
RECITALS
A. UNM is in need of assistance with investigation and legal analysis

("Investigation") as described in Attachment A ("Scope of Services"). The
Investigation shall be overseen by UNM OUC and one or more designated UNM
administrator(s), and is to be done on a confidential basis, subject to the attorney-
client privilege and the attorney work product doctrine where applicable.
B. Investigator is willing to provide services to UNM OUC for the benefit of the
UNM under the terms and conditions set forth in this Agreement.
The parties agree as follows:
I. SERVICES
A. Investigator will conduct the Investigation described in Attachment A.
B. Investigator will travel to the UNM campus in Albuquerque, New Mexico to

conduct the on-site portion of the Investigation. It is anticipated and expected that
the on-site portion of the Investigation will be completed by no later than October
31,2017.
31, 2017.
C. UNM will provide to Investigator the records and information necessary to

perform the Investigation. All records provided to Investigator will be returned to
the UNM upon completion of the Investigation.
D. Investigator will conduct interviews as requested by UNM. Investigator may also

interview additional individuals, as appropriate, to complete the Investigation.
E. Investigator will provide periodic confidential oral briefings of his progress and
legal analysis to designated UNM administrators and the UNM OUC, subject to
the attorney-client privilege and the attorney work product doctrine where
applicable. The briefings will include Investigator's recommendations, if any, for
next investigative steps. Investigator may be requested by UNM OUC to provide
a written report of his findings and legal analysis.
1
F. Investigator, in providing services pursuant to this Agreement and any requested

oral or written report to UNM OUC and/or other UNM administrators, is
performing consulting services for UNM, and shall abide by all applicable
confidentiality requirements, including but not limited to the Family Educational
Rights and Privacy Act of 1974 (FERPA).
II. COMPENSATION
UNM will compensate Investigator for the services contemplated by this Agreement at a
rate of two hundred dollars ($200) per hour, to be billed in one-tenth hour increments,
and not to exceed twenty-five thousand dollars ($25,000). In addition, UNM will
reimburse Investigator at cost for reasonable and necessary lodging, meals and travel
expenses incurred in accordance with UNM's
UNM' s travel policy (University Administrative
Policy 4030), a copy of which is attached as Attachment B. Billing should be provided to
UNM OUC. Compensation will be paid by UNM to Investigator on a reimbursement
basis within 30 days after receipt of an original invoice, including original receipts, if
applicable, provided by Investigator. In no event will total compensation for expenses
under this Agreement exceed $12,000.
III. CONFIDENTIALITY
The parties agree that all communications between Investigator and UNM OUC, as well
as any materials or information developed or received by Investigator pursuant to this
Agreement, whether oral or written, are protected by applicable legal privileges
priVileges and
federal privacy law and therefore will be treated by Investigator as confidential.
Accordingly, Investigator agrees, unless otherwise required by law, not to disclose any of
his communications or any of the information he receives or develops in the course of the
Investigation to any person or entity apart from UNM OUC or such other administrators
as UNM oueOUC may designate. Any written materials prepared by Investigator for the
purposes of the Investigation will be confidential material that is the property of UNM.
Any use of such information for other than the express purpose for which it is provided is
prohibited.
Investigator and UNM will not disclose the compensation payable to Investigator
pursuant to this Agreement, except to the extent required by law or regulations,
or as may be required to carry out the terms of this Agreement.
IV. RECORDS
A. Investigator will maintain appropriate records and receipts required to justify the
billings by Investigator.
C. UNM and Investigator will maintain auditable records for this Agreement at all
times and for at least four years after this Agreement is terminated.
2
V. RELATIONSHIP OF PARTIES
Investigator will perform professional services under this Agreement as an independent
contractor. Nothing contained in this Agreement will be deemed or construed to make
Investigator an agent, employee, servant, partner or joint venturer of, or with UNM.
VI. TERM AND TERMINATION
A. Term. This Agreement will be effective as of the date first set forth above, and
will terminate on October 31,2017,
31, 2017, unless renewed by written agreement of the
parties or earlier terminated as provided below.
B. Termination. Either party may terminate this Agreement at any time with or
without cause by delivering written notice to the other party at least five (5)
(5)
calendar days in advance of the proposed date of termination.
c.
C. Effect of Termination. Upon termination of this Agreement, neither party shall
have any further obligations under this Agreement; except for obligations
contained in this Agreement that expressly extend beyond the term of this
Agreement.
VII. MISCELLANEOUS
A. Entire Agreement. This Agreement represents the entire understanding between
the parties and supersedes any prior agreements or understandings with respect to
the subject matter of this Agreement.
B. Waiver of Breach. The waiver by either party of a breach or violation of any

provision of this Agreement will not operate as or be construed as a waiver of any
subsequent breach of this Agreement.
C. Modifications. No changes, amendments or alterations to this Agreement will be

effective unless in writing and signed by both parties.
D. Governing Law. This Agreement will be construed, interpreted, governed and

enforced in accordance with the statutes, judicial decisions, and other laws of the
State of New Mexico.
E. Severability. The invalidity or unenforceability of any term or provision of this

Agreement will in no way affect the validity or enforceability of any other term or
provision to the extent permitted by law.
F. Third Parties. Nothing in this Agreement, express or implied, is intended to

confer any rights, remedies, claims, or interests upon a person not a party to this
Agreement.
3
G. Notices. Any notice required to be given pursuant to the terms and provisions of
this Agreement be in writing and will be sent by certified mail, return receipt
requested, postage prepaid, as follows:
ToUNMOUC: Elsa Kircher Cole, University Counsel

Office of University Counsel
MSC05 3440
1 University of New Mexico
Albuquerque, New Mexico 87131-0001
To Investigator: Bruce D. Black LLC

804 Viejo Rastro
INVESTIGATOR:
Date: ----------------
Bruce D. Black LLC
REGENTS OF THE UNIVERSITY OF NEW MEXICO,
By~--~~~-------------- Date:
----------------
Bruce Cherrin
Director, Purchasing Department
and
By Date: __________________
Elsa Kircher Cole, University Counsel
4
ATTACHMENT A
Scope of Services
Under the coordination and direction ofUNM OUC and UNM School of Law Dean
Alfred Mathewson, engage in initial fact-finding and legal analysis of certain complaints
regarding the conduct of individuals within the UNM Department of Athletics
("Department"), focusing on alleged violations of University policy, Department rules
and an examination of the culture within the sport where the complaint(s) originated. In
particular, focus on issues relating to 1) permissible coaching techniques and 2)
enforcement of department rules regarding use of illegal drugs and drug testing.
Prepare and conduct periodic oral reports of findings and legal analysis to UNM OUC,
Dean Mathewson and other University administrators designated by UNM OUC and/or
Dean Mathewson. Prepare, if requested, a written report describing the results of this
investigation with legal analysis and recommendations for further steps.
This investigation is in addition to, and not in place of, any investigation being conducted
by the UNM Office of Equal Opportunity.
Mechanisms for conducting the investigation are anticipated to include:
• one-on-one interviews with University administrators, coaching staff and other

Department staff, and students;
• review of UNM documents and emails as appropriate;
• review of existing UNM policies addressing a Respectful Campus, a Drug-Free
Campus, UNM Pathfinder Policy on Drugs and Alcohol, the UNM Student-
Athlete Handbook, and applicable NCAA and Mountain West Conference
policies and rules.
The timeline for completing this Investigation is no later than September 30,2017.
30, 2017.
5
Bruce D. Black, LLC
•
804 Viejo Rastro
Santa Fe, NM 87505
Invoice
lnvoicc/1 0 I
Invoke Dale: May 31, 2017
Ptudu:c01hii H)l,l8610
JlillTn Ship To:
University ofl\cw Mexico University

1'0 Ilox 454~ Counsel
:\mJUillS Payable Dept.
MSC 05 J440
1\lbtK]tll'f\]UC, NM 87196 Univetsity of
N~rw :VIcxico
Scholes Hull
Albt>qll(.'llj!JC,NM 87131
Alln: Elsa Cole 505-277-7628
Description Hours Per Hour Total
$4,678.90
Legal Service re: Regent lvlatt.:r
- -··--'-·- ---------------·--·-····-··----------------·--······-·-------------t-+--------1------
Sul)total $4.678.90
Balance Due $4,678.90

Bruce D. Black, LLC
••oI
804 Viejo Rastro
Santa Fe, NM 87505
Invoice
lnvoicc #Ol
Invoice Date: January 3, 2018
Pm:fal!Qd:r# ro 151153
Bill To: Ship To:
University ofNew Mexico University

PO Box 4548 Counsel
ACCOlUliS Payable Dept
MSC 05 3440
Albuqu::rquc,NM 87196 University of
Ncrw Mexico
Scholes Hall
1\lbuqucrquc,NM 87131
1\ttn: Elsa Cole 505-277-7628
D escription Hours Per Hour Total
$14,401.63
Legal Service rc: Athletics Matter
Subtotal
$14.401.63
Balance Due $ L4 40 1.63
Aw~
Chris Kallman
Filed
Supreme Court of New Mexico
1/11/2022 3:51 PM
Office of the Clerk
1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
2 January 11, 2022
3 NO. S-1-SC-37698
4 IN THE MATTER OF
5 VICTOR R. MARSHALL
6
7 An Attorney Licensed to
8 Practice Law Before the
9 Courts of the State of
10 New Mexico
11 ORDER
12 WHEREAS, this matter came on for consideration by the Court upon
13 Respondent’s motion to allow after-acquired evidence and Petitioner’s response,
14 and the Court having considered the foregoing and being sufficiently advised,
15 Chief Justice Michael E. Vigil, Justice C. Shannon Bacon, Justice David K.
16 Thomson, Justice Julie J. Vargas, and Justice Briana H. Zamora concurring;
17 NOW, THEREFORE, IT IS ORDERED that Respondent’s motion is
18 DENIED.
19 IT IS SO ORDERED.
WITNESS, the Honorable Michael E. Vigil, Chief

Justice of the Supreme Court of the State of New
Mexico, and the seal of said Court this 11th day of
January, 2022.
…NEW MEXICO q DATA YEAR: 2023 a DATA DOWNLOAD
SUNSHINE PORTAL
Purchases
g
BUDGET The Purchases information has been updated as of April 14, 2023 and re�ects purchase order balances as of March 31, 2023.
c Purchases Overview
CASH BALANCES
# OF PURCHASE ORDERS AMOUNT
f 76 $443,759.22
ANNUAL FISCAL
SUMMARY
Purchases Overview o Agencies o Judicial o Court of Appeals o LAW OFFICES OF MICHAEL D BUSTAMANTE o 0000004192
e
INVESTMENT
ACCOUNTS m Download CSV n Download PDF l Search
j PO Details:
REVENUE
PO ID: PO DATE: AGENCY: VENDOR:
0000004192 Aug 16, 2022 Court of Appeals LAW OFFICES OF MICHAEL D BUSTAMANTE
d CONTRACT ID: DIVISION: VENDOR ID: PO STATUS:
EMPLOYEES
0000135878 Dispatched
k BUYER: ORIGIN: CANCEL STATUS:
STATE LAND D.21500.PE PSC Approved

CONTRACTS
i Quick Search
PURCHASES LINE ITEM CATEGORY DESCRIPTION DATE TOTAL AMOUNT AMOUNT EXPENDED BALANCE
$108,000.00 $71,843.70 $36,156.30

h
CAPITAL PROJECTS
1 Professional Services Pro Tem Judge Bustamante for New Mexico Court of Appeals SC order #19-8500-DS Aug 16, 2022 $50,000.00 $50,000.00 $0.00
2 Professional Services Pro Tem Judge Bustamante for New Mexico Court of AppealsSC order #19-8500-DS Aug 16, 2022 $58,000.00 $21,843.70 $36,156.30
Showing 1 to 3 of 3 entries
pro tem contract questions
Subject: pro tem contract ques�ons

From: michael bustamante <mdbustamante67@gmail.com>
Date: 2/11/2019, 5:15 PM
To: suppjm@nmcourts.gov, coamhr@nmcourts.gov
Jus�ce Maes and Mark, some clariﬁca�on on the work I am doing for the COA: 1. should I keep �me
records? Or will this be a pure lump sum contract? I know the max is $1,000.00 for the authorship
and $250.00 for the par�cipa�on. The �me spent will far outstrip any hourly rate that might apply.
2. Will there be an actual "pro tem contract" to be signed? If so, shouldn't that be done pre�y soon,
if not before I start much substan�ve work? 3. When I am ready to circulate an opinion, I assume I
will be allowed to give it to Nicole--or someone-- to put into shape for the Court's new process. 4.
Has the process and contract been run by PERA and accepted by it as a "true" contract so it has no
poten�al to aﬀect my re�rement? I don't want to spend too much �me on the project un�l I have
these issues cleared up. thanks mdb
1 of 1 9/15/2021, 12:29 PM
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u 2 July 13, 2017
3 NO. 17-8500-DS
4 IN THE MATTER OF THE DESIGNATION OF

5 HON. JAMES J. WECHSLER TO PRESIDE OVER
6 WATER RIGHTS ADJUDICATIONS IN THE
7 FIRST, THIRD, FIFTH, ELEVENTH, AND THIRTEENTH
8 JUDICIAL DISTRICT COURTS
9 ORDER
10 WHEREAS, on November 10, 2009, and December 21, 2010, the Chief
11 Justice of the Supreme Court ofNew Mexico issued orders designating Court of
12 Appeals Judge James J. Wechsler to preside over the following water rights
13 adjudications:
14 1. Anaya v. Public Service Company ofNew Mexico, cause numbered CV-

15 71-43347, pending in the First Judicial District Court;
16 2. State of New Mexico, ex ref., Office of the State Engineer v. Elephant

17 Butte Irrigation District, eta!., cause numbered CV-96-888, pending in
18 the Third Judicial District Court, with the exception of the proceeding
19 entitled Stream System Issue 97-101 that concerns consumptive irrigation
20 requirements and farm delivery requirements for all crops in the Lower
21 Rio Grande basin;
22 3. The consolidated cases of State ofNew Mexico, ex ref., State Engineer,

23 and Pecos Valley Artesian Conservancy District v. Lewis, eta!., cause
24 number 20294, and State of New Mexico, ex ref., State Engineer, and
25 Pecos Valley Artesian Conservancy District v. Hagerman Canal Co.,
1
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u 2 4. State of New Mexico, ex rel., State Engineer v. The United States of
3 America, et al., cause numbered CV-75-184, pending in the Eleventh
4 Judicial District Court; and
5 5. State ofNew Mexico, ex rel., State Engineer v. Kerr-McGee Corp., cause

6 numbered CV-83-190, pending in the Thirteenth Judicial District Court;
7 WHEREAS, Hon. James J. Wechsler has announced his intention to retire
8 as a Court of Appeals Judge, effective July 31, 2017; and
9 WHEREAS, it appearing to the Chief Justice that it would be in the best
10 interests of judicial economy and the expeditious disposition of the foregoing
11 cases if Judge Wechsler were to continue presiding as a pro tern judge in the
12 above-entitled water rights adjudications to which he was previously designated
13 while a Court of Appeals Judge.
14 NOW, THEREFORE, IT IS ORDERED that, pursuant to the authority of
15 the Chief Justice under Article VI, Sections 3 and 15, of the Constitution of the
16 State of New Mexico, effective July 31, 2017, Hon. James J. Wechsler is
17 designated to preside over the following water rights adjudications:
18 1. Anaya v. Public Service Company ofNew Mexico, cause numbered CV-

19 71-43347, pending in the First Judicial District Court;
20 2. State of New Mexico, ex rel., Office of the State Engineer v. Elephant

21 Butte Irrigation District, et al., cause numbered CV -96-888, pending in
2
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1 the Third Judicial District Court, with the exception of the proceeding
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~ 2 entitled Stream System Issue 97-10 I that concerns consumptive irrigation

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u 3 requirements and farm delivery requirements for all crops in the Lower
4 Rio Grande basin;
5 3. The consolidated cases of State ofNew Mexico, ex rel., State Engineer,

6 and Pecos Valley Artesian Conservancy District v. Lewis, et al., cause
7 number 20294, and State of New Mexico, ex rel., State Engineer, and
8 Pecos Valley Artesian Conservancy District v. Hagerman Canal Co.,
9 cause numbered 22600, pending in the Fifth Judicial District Court;
10 4. State of New Mexico, ex rel., State Engineer v. The United States of

11 America, et al., cause numbered CV-75-184, pending in the Eleventh
12 Judicial District Court; and
13 5. State ofNew Mexico, ex rel., State Engineer v. Kerr-McGee Corp., cause

14 numbered CV-83-190, pending in the Thirteenth Judicial District Court;
15 IT IS FURTHER ORDERED that Judge Wechsler shall be compensated
16 for services rendered pursuant to this order at the rate of ninety-seven dollars and
17 forty-one cents ($97.41) per hour, which shall be paid from the Water Rights
18 Adjudication Fund administered by the Administration Office of the Courts;
19 IT IS FURTHER ORDERED that Judge Wechsler may be reimbursed for
20 mileage and per diem, provided that such costs are paid from the Water Rights
21 Adjudication Fund administered by the Administration Office ofthe Courts; and
22 IT IS FURTHER ORDERED that the Clerks of the First, Third, Fifth,
23 Eleventh, and Thirteenth Judicial District Courts shall provide a copy of this
3
1 order to the parties in the cases referenced in this order.
2 DONE at Santa Fe, New Mexico, this 13th day of July, 2017.
3
4 J aith K. Nakamura, Chief Just1ce
4
VICTOR R. MARSHALL
Born in New York, New York, 1947.
Graduated magna cum laude from Princeton University in 1969, with a bachelor’s degree in
Oriental Studies. Minors in economics and art.
International banker at J.P. Morgan, New York, 1969 – 1972. Finished second in officer
training class of 31, most of whom had MBA degrees. Declined fast-track promotion in
order to attend law school.
Harvard Law School 1972 – 1975, J.D. 1975. Harvard Legal Aid Society.
Rodey, Dickason, Sloan, Akin and Robb, P.A., Albuquerque, New Mexico 1975 – 1990.
Partner and member of the firm’s executive committee. Practice concentrated on
commercial litigation, constitutional law, and media law.
Victor R. Marshall and Associates, P.C., 1990 – 2022. Shareholder and President.
New Mexico State Senate, 2 terms from 1985 through 1992. Served on the Senate Judiciary
Committee as Co-Chairman or Vice Chairman; Finance Committee; Indian Affairs
Committee.
- Sponsored 1988 constitutional amendment for merit selection of judges, N.M.
Const. art. VI.
- Sponsored the mandatory seat belt statute, NMSA 1978, §§ 66-7-370 through -373.
New Mexico was the third state in the country to enact a seatbelt statute.
- Sponsored the Natural Lands Protection Act, NMSA 1978, §§ 75-5-1 through -6.
- Worked to protect peremptory challenges to judges by agreement between the
legislature and the judiciary. NMSA § 38-3-9 and Rule 1-088.1.
- Helped to increase access to justice by expanding the venue for suits against state
officials from Santa Fe to any county in the state. NMSA § 38-3-1(G), as amended in 1988.
New Mexico Federal Judicial Selection Committee, 1980 – 1982. Recommended

appointments for federal district and Tenth Circuit judges and US attorney, including Judge
Bobby Baldock and Judge James Parker.
Albuquerque Open Spaces Task Force. Worked with Mayor David Rusk, Mayor Harry
Kinney, and the City Council to preserve the Elena Gallegos Grant in the Sandias as Open
Space and National Forest.
CASES OF PUBLIC IMPORTANCE
State ex rel. Guy Clark et al. v. State Canvassing Board, 1995-NMSC-001, 119 N.M. 12, 888 P.2d
458.
1
The gambling industry managed to pass an amendment to the New Mexico Constitution
that created a state lottery and a constitutional right to engage in “video gaming” (slot
machines) throughout New Mexico. The constitutional amendment was approved by the
voters in an election, mainly due to the popularity of a state lottery. The Marshall firm
successfully challenged the amendment in a post-election suit, representing an anti-gambling
activist, a liberal Democratic state representative, and a conservative Republican state
representative. The Supreme Court invalidated the constitutional amendment for logrolling
– tying slot machines to a state lottery. If this lawsuit had not succeeded, New Mexico
would now have gambling machines in stores and gas stations everywhere, with
constitutional protection.
State ex rel. Guy Clark, Max Coll, and George Buffett v. Governor Gary Johnson, 1995-NMSC-048,
120 N.M. 562, 904 P.2d 11.
Governor Johnson signed agreements with several tribes to allow casino gambling on tribal
lands in New Mexico. The Marshall firm filed a writ in the New Mexico Supreme Court on
behalf of an anti-gambling activist, a liberal Democratic state representative, and a
conservative Republican state representative. The Supreme Court invalidated the
agreements. The Court held that the agreements attempted to create a tribal-state compact
that would be binding in perpetuity under the compacts clause of the United States
Constitution, without the enactment of the statute by the legislature. This ruling was later
upheld by the Tenth Circuit in Pueblo Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997).
Justice Minzner’s opinion in Clark v. Johnson is often cited as the major modern precedent on
separation of powers among the three branches of government.
Board of County Comm’rs of San Miguel County and New Mexico Ass’n of Counties v. Joe R.
Williams, Secretary of Department of Corrections and Parole Board, 2007-NMCA-036, 141 N.M.
356, 155 P.3d 761.
The firm successfully represented New Mexico counties against the Corrections
Department, establishing a new precedent that the Corrections Department must pay for the
costs of confining parole violators in any county detention facility.
West Bluff Neighborhood Ass’n v. City of Albuquerque, 2002–NMCA-075, 132 N.M. 433, 50
P.3d 182.
Major precedent on the nature of municipal comprehensive plans.
San Juan Agric. Water Users Ass’n v. KNME-TV, 2011-NMSC-011, 150 N.M. 64, 257 P.3d
884.
Major precedent on the Inspection of Public Records Act and the differences between state
and federal statutes. To protect themselves, persons can use an attorney as their agent to
request public records.
State ex rel. State Engineer v. United States, D-1116-CV-75-184 (General File); Claim of the
Navajo Nation, No. AB-07-1.
2
The Marshall firm represented more than 20 acequias and community ditches along the San
Juan River in Northwest New Mexico, around Farmington, Bloomfield, and Aztec. These
acequias supply water to more than 10,000 individual landowners, plus local municipalities
and industries. This litigation involves the claim by the United States and the Navajo
Nation to more than 600,000 acre-feet of water from the San Juan River, which is more than
6 times the amount of water used by the Albuquerque metropolitan area. If the United
States ultimately succeeds in its claim, then this will reduce or completely eliminate the
water supply to the City of Albuquerque through the San Juan Chama project.
State ex rel. Foy v. Vanderbilt, D-101-CV-200801895, consolidated with State ex rel. Foy v.
Austin Capital, D-101-CV-200901189; 2015-NMSC-25, 355 P.3d 1
Frank Foy was the former chief investment officer for New Mexico’s Educational
Retirement Board. In 2008 he filed Vanderbilt, which was the first case in state court under
New Mexico’s Fraud Against Taxpayers Act, NMSA 1978, §§ 44-9-1 through -16
(“FATA”). The Foy qui tam lawsuits exposed a massive pay to play conspiracy at the ERB
(the pension fund for public school teachers) and the State Investment Council (the
endowment fund which supports public schools and universities). The lawsuits ultimately
forced the resignation of the SIC’s chief investment officer (Gary Bland) and the chairman of
the ERB (Bruce Malott).
On June 25, 2015, the New Mexico Supreme Court ruled in favor of Frank Foy and
the State of New Mexico in an interlocutory appeal in the State ex rel. Foy v. Austin Capital
Managemenr, Ltd., 2015-NMSC-25, 355 P.3d 1. The Court held that FATA’s 20-year
retroactivity provision is constitutional. The Foy decision increased the state’s ability to
recover money for taxpayers in hundreds of FATA cases.
The Supreme Court also ruled in favor of Foy on several other issues. The Marshall
firm worked with the New Mexico Foundation on Open Government and the New Mexico
Press Association to force the State Investment Council to comply with the Inspection of
Public Records Act and the Open Meetings Act. In May 2015 the State Investment Council
voted to abolish its secret subcommittee, which acted on litigation without keeping any
records or giving notice of its meetings
State ex rel. Jerry Lee Alwin, Max Coll and Cisco McSorley v. New Mexico Prison Finance Corp.,
New Mexico Corrections Department, Gary Johnson et al.
The firm represented a bipartisan group of legislators against the Corrections Department
and Governor Gary Johnson, challenging a lease and operating agreement for a private
prison. The litigation was only partly successful.
Board of Directors of the New Mexico Retiree Health Care Authority, New Mexico Ass’n of
Educational Retirees, Retired Public Employees of New Mexico, Rubye Lee Gibson, Betty Rea, Jerry
Hanners, and Josephine Raczkowski v. James Jimenez, Secretary of Department of Finance and
Administration, and Bill Richardson, Governor.
The Marshall firm represented retired public school teachers and university faculty in a
lawsuit that challenged Governor Richardson’s line item veto of all operational funds for the
3
N. M. Retiree Health Care Authority, which provides health insurance to school retirees.
The lawsuit was settled when Governor Richardson agreed to restore the funding.
McKinney v. Gannett Co., 660 F. Supp. 984 (D.N.M. 1981), 694 F.2d 1240 (10th Cir. 1982),
817 F.2d 659 (10th Cir. 1987).
This was a 15-year struggle to recover local ownership of The Santa Fe New Mexican
newspaper from the Gannett newspaper chain. Mr. Marshall acted as lead counsel for the
McKinney family in a 14-week jury trial with a favorable verdict. The newspaper was
ultimately restored to the McKinney family, and it is still owned and operated by them.
Coronado Credit Union v. KOAT, 1982-NMCA-176, 99 N.M. 233, 656 P.2d 896.
Successful defense of a libel action against KOAT.
Roberta Padilla v. KOAT and Conroy Chino.

Successfully defended KOAT and investigative reporter Conroy Chino in a defamation
action. Jury verdict in favor of the news media.
Louie Maldonado v. Larry Barker and Pulitzer Pub. d/b/a KOAT.

Successfully defended investigative reporter Larry Barker and KOAT in a defamation
action. Jury verdict for the defense.
The New Mexican, Inc. and Foundation for Open Government v. Northland Insurance Co. and City of
Santa Fe.
The New Mexican and the Foundation for Open Government brought suit to prevent the
City of Santa Fe and its insurer from entering into secret settlements of lawsuits. The
Marshall firm succeeded in setting aside a federal court sealing order. Then in 2003 the firm
obtained a stipulated permanent injunction against the City, plus a judgment of $60,000 for
statutory damages, costs and attorney fees under IPRA.
Kysar v. Amoco Prod. Co., 2004-NMSC-025, 135 N.M. 767; 379 F.3d 1150 (10th Cir. 2004)
The firm represented a landowner against a major oil company. The case resulted in major
precedents from the Tenth Circuit and the New Mexico Supreme Court in favor of
landowners against surface trespass by oil and gas companies.
NMPRC and PNM v. The New Mexican, No. D-101-CV-201501823, appeal pending, No. A-1-
CA-38898. The Public Regulation Commission and PNM sued The New Mexican
newspaper to prevent the publication of documents that PNM used to support a rate
increase. The New Mexican filed a First Amendment counterclaim, and the PRC agreed to
dismiss its claims and pay the newspaper $20,000.
INSURANCE REGULATION AND INSURANCE RATE MAKING: In re

Rehabilitation of Western Investors Life Ins. Co., 1983-NMSC-082, 100 N.M. 370, 671 P.2d 31;
New Mexico Life Ins. Guaranty Ass’n v. Quinn &. Co., 1991-NMSC-036, 111 N.M.750, 809 P.2d
1278; Krahling v. First Trust National Ass’n, 1997-NMCA-082, 123 N.M. 685, 944 P.2d 914;
4
National Council on Comp. Ins. v. New Mexico State Corp. Comm’n, 1986-NMSC-005, 103 N.M.
707, 712 P.2d 1369.
CLASS ACTION LITIGATION: Co-ordinating counsel for thirteen insurance companies

in the following class actions: Buscema v. Allstate Life Ins. Co., No. D-101-CV-199902618;
Wilson v. Massachusetts Mut. Life Ins. Co., No. D-1-1-CV-199802814; McNabb v. New York Life
Ins. Co., No. D-1-1-CV-199902640; Azar v. The Prudential Ins. Co. of America, No. D-1314-CV-
199900613; Friesner v. North American Co. For Life and Health Ins., No. D-101-CV-199902849;
Cadigan v. Transamerica Occidental Life Ins. Co., No. D-101-CV-199902619; Kollecas v. State
Farm Life Ins. Co., No. D-101-CV-199902620; Wodzinski v. Peoples Benefit Life Ins. Co., No. D-
101-CV-200002816; Smoot v. Physicians Life Ins. Co., No. D-101-CV-200101207; Gallegos v.
Geico Gen. Ins. Co., No. D-1333-CV-200000072; Romero v. J.C. Penney Life Ins. Co., No. D-
101-CV-200100270; Enfield v. The Old Line Life Ins. Co. Of America, No. D-202-CV-
200101367; Carr v. Nationwide Life Ins. Co., No. 05-CVH2-01644 (Franklin Co., Ohio Ct.
Com. Pl.).
5
Filed
10/26/2020 5:43 PM
Office of the Clerk
~1-"
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO Joey D. Maya
STATE OF NEW MEXICO, ex reI. FOY eta!.,
Plaintiffs-Appellants,
S. Ct. No. S-1-SC-38413
v. Ct. App. No. A-1-CA-36925
Santa Fe County
VANDERBILT CAPITAL No. D-101-CV-200801895
ADVISORS, LLC, eta!. No. D-101-CV-200901189
and
AUSTIN CAPITAL MANAGEMENT,

LLC, eta!.,
Defendants-Appellees.
MOTION FOR REHEARING, VACATING COURT OF APPEALS

OPINION, AND REMANDING
Pursuant to Rule 12-309, the Plaintiffs-Appellants State of New Mexico,
Foy and Casey respectfully move the Court to reconsider the denial of
certiorari filed October 9, 2020; to grant certiorari to address the constitutional
question posed here; to vacate the Opinion filed in the Court of Appeals on
June 9, 2020; and to remand with instructions for full briefing and oral
argument on all issues in the Court of Appeals.
This motion raises a point of constitutional law which appears to have
been overlooked.
Point I. The Court of Appeals decision was written by a judge who was
not authorized by the New Mexico Constitution to act as a
judge in the Court of Appeals.
It has been brought to undersigned counsel's attention that the New
Mexico Constitution does not authorize retired judges of the Court of Appeals
to act as judges in the Court of Appeals. Article VI sets out detailed provisions
governing how judges must be qualified and selected for the District Courts,
the Court of Appeals, and the Supreme Court. Article VI also sets out detailed
requirements for which judges can be specially appointed (or designated) to
which courts. The Constitution does not allow retired judges to sit in the
Court of Appeals. Retired judges can only be appointed to act in the District
Court. N .M. Const. art. VI, § 15.
Retired Judge Bustamante authored the Court of Appeals decision that
is now under review by this Court. Judge Bustamante filed his Opinion on
June 9, 2020, long after he retired.
Article VI, section 15 is the only provision that allows the appointment
of retired judges:
C. If any district judge is disqualified from hearing any cause or is

unable to expeditiously dispose of any cause in the district, the
chief justice of the supreme court may designate any retired New
Mexico district judge, court of appeals judge or supreme court
justice, with said designees' consent, to hear and determine the
cause and to act as district judge pro tempore for such cause.
2
[Emphasis added.] The Constitution authorizes the designation of retired
Court of Appeals judges to hear cases in the District Courts, but not in the
Court of Appeals. There are other constitutional provisions dealing with the
designation of active judges or justices to various courts, but those provisions
are limited to persons who currently hold judicial office. See sections 6 and 28
in article VI. Once judges or justices have retired from judicial office, they can
be designated to act as a judge pro tempore in the district courts, but not
elsewhere.
Accordingly, retired Court of Appeals judges are not eligible to act as
judges in the Court of Appeals. Likewise, retired Supreme Court justices are
not authorized to act as justices in the Supreme Court. There are several good
reasons for this constitutional rule:
First, all active judges and justices are subject to elections. Under the
1988 constitutional amendment for the merit selection of judges, every judge
who wishes to hold office is subject to a partisan election initially, and
retention elections every 4, 6, or 8 years thereafter. N.M. Const. art. VI, § 33.
The 1988 constitutional amendment was written so that judges would remain
accountable to the people. For these reasons, the legislature passed, and the
voters enacted, a hybrid system that combines merit selection with elections.
3
This constitutional amendment contained delicate compromises which
ultimately created bipartisan support, with unusual alliances of legislators for
and against the reform. 1 Judicial vacancies are initially filled through a form
of merit selection, whereby a committee vets the candidates and submits to the
Governor a list of those the committee considers best qualified. Then the
appointed judge is subjected to a partisan contest at the next general election.
After that every judge is subjected to the judgment of the electorate in periodic
elections where the voters decide whether the judge should be retained or
removed from office. In 1994, voter control over judges was reinforced by
raising the retention requirement from 50% to 57% of the votes cast. The
amendment was proposed by S.J.R. No.1, 1994 N.M. Laws 1515-17, and
adopted at the general election on November 8, 1994.
Second, article VI is designed to prevent the judiciary from becoming
stagnant. The 1988 amendment rejected the concept of lifetime appointments
and instead created constant infusion of new talent into the judiciary at all
levels. This purpose is hindered if retired judges could continue to sit on the
Court of Appeals.
1 Undersigned counsel was one of the Senate co-sponsors of the 1988

constitutional amendment for merit selection.
4
Third, by prohibiting the continuance of retired judges on the same
court, the Constitution prevents the authority of active judges from being
diluted. Retired judges may have greater experience, but this creates dangers
of its own. By reason of their experience or personality, retired judges might
be able to impose their views on younger colleagues, even if those views are
out of date. And experienced judges may tend to give undue weight to their
own past opinions. That is what happened in this case.
Judge Bustamante convinced the members of the panel to follow the
opinion which he himself wrote in New Mexico SIC v. Weinstein, 20 16-NMCA-
069,382 P.3d 923. That is not surprising, because judges do follow their own
opinions. Judge Bustamante erroneously opined that Vanderbilt is just the
same as Weinstein. That is legal error, because Judge Singleton allowed
discovery in Weinstein, whereas Judge MacDonald allowed no discovery in
Vanderbilt. To justify the denial of discovery, Judge Bustamante held that
judges can hold a "trial" without any discovery on disputed factual issues.
Opinion at ~~ 24, 38. That is a radical change to the Rules of Civil Procedure,
but it is now the law throughout New Mexico unless this Court acts.
Fourth, while the Court of Appeals does have a significant workload
and backlog, article VI provides a solution. Section 28 provides that the
5
Chief Justice "may designate any justice of the Supreme Court, or any district
judge of the state, to act as a judge of the Court of Appeals."
It might be argued that the judiciary has the inherent power to designate
any judge to any court in the state, but that argument contradicts the plain text
of the Constitution. Of course the courts have some inherent powers to act
where the Constitution is silent. However, when the Constitution establishes
the structure of the courts and specifies in detail who may serve on each court,
the Constitution must be obeyed.
It might be argued that the error is harmless because the appellate
decision was rendered by a panel, rather than a single judge. However, the
United States Supreme Court specifically rejected this argument in Williams v.
Pennsylvania, __ U.S. __ , 136 S. Ct. 1899, 1909 (2016).
WHEREFORE, Appellants respectfully move the Court to grant
rehearing about this overlooked issue. Certiorari should be granted to address
this constitutional question, along with the other questions posed by the
appeal. The Court should hear oral argument, because this is an important
constitutional issue which must be decided with full consideration, not by
oversight or inadvertence. The Court should vacate the Opinion below and
6
remand to the Court of Appeals for new proceedings on all issues with full
briefing and oral argument.
Counsel for Defendants-Appellees oppose this motion.
Respectfully submitted,
VICTOR R. MARSHALL & ASSOCIATES, P.C.
By /s/ Victor R. Marshall

Victor R. Marshall
Attorneys for Qui tam Plaintiffs
12509 Oakland NE
Albuquerque, New Mexico
505/332-9400
I hereby certify that a true and correct

copy of the foregoing was efiled and
served via Odyssey File and Serve to all
counsel of record on October 26, 2020.
1sl Victor R. Marshall

Victor R. Marshall
7
Filed
10/26/2020 5:43 PM
Office of the Clerk
STATE OF NEW MEXICO, ex rel. FOY et al.,
S. Ct. No. S-1-SC-38413
v. Ct. App. No. A-1-CA-36925
Santa Fe County
ADVISORS, LLC, et al. No. D-101-CV-200901189
and

LLC, et al.,
BRIEF IN SUPPORT OF MOTION FOR RECUSAL,

DISQUALIFICATION, AND REHEARING
Introduction
Judges routinely recuse themselves from cases involving clients whom
the judges used to represent, when they were lawyers. Judges screen all the
cases assigned to them, and if they see that a case involves a former client,
they immediately recuse themselves. This is standard practice required by the
Code of Judicial Conduct. See Rule 21-211 NMRA.
In our adversarial system of justice, lawyers are not neutral. Instead
they have a duty of undivided loyalty to their clients. Attorneys are ethically
obligated to advocate for their clients, to keep information confidential, and to

protect their clients’ interests. Lawyers have a duty to protect their clients
from criminal or civil liability, so long as the lawyers stay within the
boundaries of the law.
Once lawyers become judges, their duties are reversed. Judges must
decide cases with absolute impartiality – our entire judicial system is based on
that concept. Our judicial system is also based on public trust in the integrity
of the courts, so judges are required to recuse themselves from any cases where
their impartiality might be questioned by members of the public.
The standard judicial practice of recusal has not been followed in this
case. On September 21, 2020, appellants filed a letter to the Supreme Court
clerk with information concerning the recusal of Justice Bacon. It was thought
that this was the most polite way to raise the issue, with notice to all parties. It
is not known whether Justice Bacon saw this letter, but it must be presumed
that she did. On October 9, 2020, she participated in an order denying
certiorari, with no opinion. Therefore it has unfortunately become necessary
to file a formal motion regarding these matters.
The letter filed September 21 is attached as Exhibit 1 in support of this
motion, and it should be read first.
2
I. Shannon Bacon was one of Bill Richardson’s lawyers throughout the

pay to play era, when Bill Richardson spread corruption to the ERB
and SIC, and when he engineered Frank Foy’s dismissal from the
ERB.
C. Shannon Bacon acted as one of Bill Richardson’s lawyers for many
years, until Bill Richardson appointed her to the bench in April 2010.
Ms. Bacon represented Mr. Richardson before he became governor in
January 2003, and she continued to represent him during the Richardson
administration. See Exhibit 2 (Affidavit of Victor R. Marshall) and Exhibit 3
(Letter by Ms. Bacon on behalf of Governor Richardson, threatening to take
action against proposed Fort Sill Apache casino dated February 27, 2008).
This is the time when the events in this lawsuit occurred, as Governor
Richardson carried out his pay to play schemes at the State Investment
Council and the Educational Retirement Board. [RP 08272-8386]
In the course of representing Bill Richardson, attorney Bacon worked
with Bruce Malott, one of the key defendants in this case. Bruce Malott was
Chairman of the Educational Retirement Board (ERB); a member of the
Retiree Health Care Authority; and the Board of Accountancy. Malott was
also the personal accountant for Bill Richardson; Richardson’s 2002 primary
campaign; and Richardson’s Moving America Forward PAC and Moving
America Forward Foundation. Malott “arranged, paid, or received bribes on
3
investments made by the State of New Mexico.” [RP 08283-84; 08307-22]
Malott was forced to resign from the ERB as a result of this lawsuit. [RP
08314]
It seems likely that attorney Bacon also worked with defendant David
Contarino, who was Richardson’s Chief of Staff and campaign manager. [RP
08285] And she may have worked with other defendants in this case, but
plaintiffs don’t know, because no judicial disclosures have been made.
II. Frank Foy’s lawsuit – this very lawsuit – exposed the pay to play
corruption of Shannon Bacon’s client Bill Richardson, and destroyed
his political career.
In October 2008, 61% of likely New Mexico voters approved of
Governor Richardson’s job performance, according to a public opinion poll by
The Albuquerque Journal. Then in mid-January 2009, Frank Foy’s lawsuit –
this lawsuit – was unsealed. It prompted public outrage. By September 2009,
Richardson’s job approval rating dropped to 51%. By August 2010, his
approval rating dropped to 33%, and his disapproval rating soared to 63%.
Dan Boyd, Gov.’s Approval Rating Tanks, Albuquerque Journal, Aug. 29, 2010,
at A-1.
Bill Richardson left office at the end of 2010, disgraced and discredited.
4
III. As a lawyer for Bill Richardson, Shannon Bacon had a duty to protect
him from civil or criminal liability. She still owes continuing duties
of loyalty to Bill Richardson. Therefore it is legally impossible for
Justice Bacon to act with impartiality in this case.
All lawyers have an obligation to try to protect their clients from civil or
criminal liability. Indeed, that is one of the main duties of every lawyer.
All the attorneys in a law firm owe duties of loyalty to the firm’s clients
which continue after an attorney leaves the firm, and after the representation
ends. Roy D. Mercer, LLC v. Reynolds, 2013-NMSC-002, ¶ 1, 292 P.3d 466:
In the practice of law, there is no higher duty than one’s loyalty to

a client. This duty applies to current and former clients alike.
This Court reaffirmed the continuing duties of lawyers to a client in
Living Cross Ambulance Serv., Inc. v. New Mexico PRC, 2014-NMSC-036, ¶ 13,
338 P.3d 1258:
The Rules of Professional Conduct place an affirmative duty on

attorneys to protect their clients, even after the representation of a
client has ended, by not working on cases that are materially
adverse to the interests of a former client.
See also Rule 16-109: duties to former clients. Rule 16-110 imputes these
duties to all members of a law firm, even if a particular lawyer did not work on
a particular matter. Id.
These principles of law are carried over into the rules on judicial recusal.
Rule 21-211 first states a general requirement:
5
A. A judge shall disqualify himself or herself in any proceeding

in which the judge’s impartiality might reasonably be questioned .
...
[Emphasis added.] See Judicial Advisory Opinion No. 17-05 (Re-issued)
(Dec. 7, 2017): “By using the word ‘might,’ the rule specifically embraces
situations in which there is merely the possibility that a reasonable person
could question the judge’s impartiality.”
The present circumstances clearly fall within this rule, because attorney
Bacon’s duty of loyalty to Bill Richardson conflicts with Justice Bacon’s duty
of absolute impartiality.
IV. Because she was Bill Richardson’s attorney, Shannon Bacon has
extrajudicial knowledge about Bill Richardson’s activities.
During the years she represented Richardson, Shannon Bacon inevitably
and necessarily gained a great deal of first-hand extrajudicial knowledge about
Richardson’s activities. See Rule 16-101 (attorneys must investigate the facts
and law concerning their clients).
Extrajudicial knowledge. After they take the bench, judges are
required to recuse themselves when they have extrajudicial knowledge of facts
that are relevant to the proceeding. Rule 21-211(A)(1). See United States v.
Alabama, 828 F.2d 1532, 1546 (11th Cir. 1987) (judge disqualified after
conducting a trial because he "had extrajudicial, personal knowledge of
6
disputed facts" going back 30 years); Wessman v. Boston School Committee, 979
F. Supp. 915, 918-19 (D. Mass. 1997); W. Clay Jackson Enter., Inc. v. Greyhound
Leasing & Fin. Corp., 467 F. Supp. 801, 803 (D.P.R. 1979).
Although one cannot say for sure, it seems likely that Shannon Bacon or
her partners were consulted about some of the activities that gave rise to this
case. Under Rule 21-211(A), recusal is required when:
(5) The judge:

(a) served as a lawyer in the matter in controversy, or
was associated with a lawyer who participated substantially as a
lawyer in the matter during such association;
See also the rule that judges must recuse if they are likely to be a
material witness in the proceeding. Rule 21-211(A)(2)(D). Without discovery,
it is not possible to tell whether she would be a material witness, but that is a
distinct possibility.
It might be protested that some of Shannon Bacon’s knowledge about
Bill Richardson is protected by the attorney-client privilege. If so, that is
another reason for recusal.
7
V. Justice Bacon has failed to disclose all the relevant facts concerning
her work as a lawyer for Bill Richardson. There are many
unanswered questions about her work for Bill Richardson, and those
questions will cause the public to doubt her impartiality.
The law requires judges to disclose on the record information that the
parties or their lawyers might reasonably consider relevant to a possible
motion for disqualification, even if the judge believes there is no basis for
disqualification. Rule 21-211, cmt. [8]. Recusal decisions must be made “with
knowledge of all the facts.” In re Kensington International, 368 F.3d 289, 296
(4th Cir. 2004).
VI. Justice Bacon’s participation in this case is a due process error under
the Constitution of the United States which is not cured by the
participation of other judges.
It might be argued that Justice Bacon’s participation in the decision
concerning certiorari is harmless or moot, because she was part of a panel.
However, the Supreme Court of the United States has vigorously and
repeatedly rejected that argument:
For the reasons discussed below, the Court holds that an

unconstitutional failure to recuse constitutes structural error even
if the judge in question did not cast a deciding vote.
The Court has little trouble concluding that a due process

violation arising from the participation of an interested judge is
a defect “not amenable” to harmless-error review, regardless of
whether the judge’s vote was dispositive. Puckett v. United States,
556 U.S. 129, 141 (2009) (emphasis deleted). The deliberations of
8
an appellate panel, as a general rule, are confidential. As a result,

it is neither possible nor productive to inquire whether the jurist in
question might have influenced the views of his or her colleagues
during the decisionmaking process. Indeed, one purpose of
judicial confidentiality is to assure jurists that they can reexamine
old ideas and suggest new ones, while both seeking to persuade
and being open to persuasion by their colleagues. As Justice
Brennan wrote in his Lavoie concurrence,
“. . . . And, while the influence of any single

participant in this process can never be measured with
precision, experience teaches us that each member’s
involvement plays a part in shaping the court’s
ultimate disposition.” 475 U.S. at 831.
These considerations illustrate, moreover, that it does not

matter whether the disqualified judge’s vote was necessary to
the disposition of the case. The fact that the interested judge’s
vote was not dispositive may mean only that the judge was
successful in persuading most members of the court to accept his
or her position. That outcome does not lessen the unfairness to
the affected party. See id., at 831-32, (Blackmun, J., concurring
in judgment).
A multimember court must not have its guarantee of neutrality

undermined, for the appearance of bias demeans the reputation
and integrity not just of one jurist, but of the larger institution
of which he or she is a part. An insistence on the appearance of
neutrality is not some artificial attempt to mask imperfection in
the judicial process, but rather an essential means of ensuring the
reality of a fair adjudication. Both the appearance and reality of
impartial justice are necessary to the public legitimacy of judicial
pronouncements and thus to the rule of law itself. When the
objective risk of actual bias on the part of a judge rises to an
unconstitutional level, the failure to recuse cannot be deemed
harmless.
9
[emphasis added] Williams v. Pennsyvania, ___ U.S. ___, 136 S. Ct. 1899,
1909-10 (2016) (citing Puckett v. United States, 556 U.S. 129, 141 (2009) and
quoting Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986)).
VII. Three other justices properly recused themselves from this case, but
Justice Bacon’s failure to recuse demeans the reputation and integrity
of the entire Supreme Court.
During the proceedings in this court, Justices Michael Vigil, David
Thomson, and Barbara Vigil recused themselves, for a variety of legitimate
reasons. These Justices were simply following the strict rules on recusal that
this Court adopted as far back as 1984.
It is not fair to the justices who recused, or to the institution itself, to
have another justice fail to recuse. As Justice Kennedy wrote in Williams, “A
multimember court must not have its guarantee of neutrality undermined, for
the appearance of bias demeans the reputation and integrity not just of one
jurist, but of the larger institution of which he or she is a part.”
10

Victor R. Marshall
Attorneys for Qui tam Plaintiffs
12509 Oakland NE
Albuquerque, New Mexico
505/332-9400

copy of the foregoing was efiled and
served via Odyssey File and Serve to all
counsel of record on October 26, 2020.
/s/ Victor R. Marshall

Victor R. Marshall
11
Filed
9/21/2020 12:42 PM
Office of the Clerk

Attorneys at Law
12509 Oakland NE
(505) 332-9400
September 21, 2020
Joey D. Moya
Clerk of Court and Chief Counsel
237 Don Gaspar Ave.
Santa Fe, NM 87501
Re: Supreme Court No. S-1-SC-38413; information concerning possible recusal
Dear Mr. Moya:
The purpose of this letter is to present information for consideration by the Court and the
parties, relating to possible recusal from this pending matter. Since there are no set
procedures for recusal in the appellate courts of New Mexico, it seems appropriate to raise
these questions by letter, with filing and service by Odyssey on all parties. The purpose of
this letter is to provide an alert to the Court and to the parties about information which may
have been overlooked thus far.
Prior to being appointed to the district court bench in 2010, Justice Bacon acted as an
attorney for Governor Bill Richardson. This is and was a matter of public record, and of
course it is not a cause for criticism. Representing a governor, any governor, is a prestigious
assignment for any lawyer. Furthermore all judges work as attorneys before they become
judges, so all judges have former clients to whom they owe continuing duties of loyalty and
confidentiality. See Rule 16-109 NMRA. These duties have no expiration date; they
continue indefinitely.
The present case involves wrongdoing by Governor Richardson, Justice Bacon’s former
client. See the excerpts below. These circumstances will become apparent if one examines
the record on appeal in this case, but the record on appeal is not normally provided to the
Supreme Court before certiorari is granted. It is entirely possible that Justice Bacon has not
picked up the file in this case, given the Court’s heavy workload, an upcoming election, and
the COVID-19 crisis. As a result, she might well be unaware of the connection between this
case and Mr. Richardson. That is the primary reason for this letter, along with the fact that
some of the parties and their counsel might also be unaware of pertinent information.
Frank Foy’s original qui tam complaint in this case was filed under seal in July 2008. When
it was unsealed in January 2009, the pay to play scandal curtailed Governor Richardson’s
political career. Mr. Foy subsequently amended his complaint to add more details about the
Governor’s wrongdoing. For example:
Joey D. Moya
September 21, 2020
Page 2
167. There are many honest employees at the ERB and the SIC, and
these employees have tried to do the right thing and carry out their fiduciary
responsibilities under the most adverse circumstances. However, the ERB
and the SIC have been, and continue to be, under the corrupt control and
adverse domination of Gary Bland, Bruce Malott, David Contarino and
Governor Richardson. Governor Richardson exercises de facto control over
the SIC and the ERB, even though these agencies are supposed to be under
the independent control of disinterested fiduciaries. Governor Richardson,
Mr. Bland, Mr. Malott, and Mr. Contarino continue to exercise their direct or
indirect control over the ERB and the SIC to try to insulate themselves from
civil and/or criminal liability, rather than to recover funds for the ERB and
the SIC, because any effort to recover funds will uncover corruption which
they wish to cover up. Thus the ERB and the SIC cannot be trusted to act in
the best interests of the State of New Mexico. The same is true of any state
agency which is controlled directly or indirectly by Governor Richardson.
[RP 4070-71]
Likewise, Mr. Foy’s complaint in Austin Capital (consolidated with Vanderbilt) describes
Governor Richardson’s pay to play machinations in considerable detail. For example, see
paragraph 23.
23. Concerning the matters described in this complaint, Contarino, Bland,

and Malott acted as agents for Governor Richardson’s campaigns, not as
agents of the State of New Mexico.
Complaint in Austin Capital, filed June 16, 2009.
The pending certiorari petition in No. S-1-SC-38413 also directly implicates Governor
Richardson as one of the primary fraudfeasors against the State of New Mexico. See Point 8
in the petition, which quotes secretly recorded audiotapes where Saul Meyer of Aldus
explains how the pay-to-play conspiracy works in New Mexico. Exhibit 18.
MEYER: I’m pushing to have him [Frank Foy] fired before the October meeting.
Meyer then explains how the conspiracy works at the SIC. Marc and Anthony Correra used
their connections to Richardson to demand finders fees from Wall Street firms. (The
Correras received at least $18 million in kickbacks on New Mexico investments.)
Meyer explains that it is becoming harder for him to juggle all the tainted deals and place
them without arousing suspicions:
Joey D. Moya
September 21, 2020
Page 3
MEYER: . . . Julio [Ramirez] feeds Anthony and Marc [Correra] good deals.
Okay? . . . And in return, in this ecosystem, Anthony and Marc give Julio the
ability to do a couple of deals a year . . . .
UNIDENTIFIED: Whew.
MEYER: That’s it . . . . That’s the whole way it runs. Okay? . . . To not think
that Anthony and Marc don’t have a stranglehold over this thing is crazy.
Because the Governor runs this sh*t and they run the Governor.
. . . . Now none of this leaves this room. . . . The Governor has no

involvement officially, or unofficially. Okay?
Petition for Writ of Certiorari 9-10.
Once again, it must be emphasized that there is nothing reprehensible in the fact that Justice
Bacon formerly represented Governor Richardson. And judges should not be reproached
for recusing themselves from a particular case, because they are simply following the very
strict rules on recusal established by the Code of Judicial Conduct, Rule 21- 211 NMRA.
Please let us know if you would like anything further from us.
Yours very truly,

Victor R. Marshall
VRM/SAM
STATE OF NEW MEXICO, ex rel. FOY et al.,
S. Ct. No. S-1-SC-38413
v. Ct. App. No. A-1-CA-36925
Santa Fe County
ADVISORS, LLC, et al. No. D-101-CV-200901189
and

LLC, et al.,
AFFIDAVIT OF VICTOR R. MARSHALL
Victor R Marshall, being first duly sworn, states:
1. I am an attorney who has practiced law in New Mexico since
1975. I am licensed to practice in the state and federal courts of New Mexico,
the Tenth Circuit Court of Appeals, and in the Supreme Court of the United
States.
2. I served in the New Mexico State Senate for eight years, from the
1985 session through the 1992 session. At one time I was co-chair of the
Senate Judiciary Committee. I was a cosponsor of the 1988 constitutional
amendment for the merit selection of judges and justices.

3. In 2004 Governor Bill Richardson vetoed certain budget line items
for the New Mexico Retiree Health Care Authority (RHCA). My firm was
retained by a group of state government retirees who wished to challenge
Governor Richardson’s veto, as co-plaintiffs with the Retiree Health Care
Authority. Board of Directors of the New Mexico Retiree Health Care Authority, et al.
v. Jimenez, et al., No. D-202-CV- 2004-05109, Complaint (Aug. 10, 2004).
4. Governor Richardson was represented by Paul Bardacke and
Shannon Bacon. Ms. Bacon signed several filings for the Governor.
5. On March 9, 2005, a meeting was held at my law firm’s offices to
discuss the litigation. Paul Bardacke and Shannon Bacon attended as the
attorneys for Bill Richardson. The other participants were:
Frank Albetta, attorney for the Retiree Health Care Authority;
Robert Vigil, State Treasurer. (Mr. Vigil was later convicted of

attempted extortion and sentenced to 37 months in federal prison.)
Bruce Malott, Bill Richardson’s appointee to the Retiree Health

Care Authority’s Board. (Bruce Malott was also Bill Richardson’s
personal accountant; accountant for Richardson’s campaigns; and later
chairman of the Educational Retirement Board (ERB). Bruce Malott is
a key defendant in this case, because he orchestrated the ouster of Frank
Foy and Evalynne Hunemuller from employment at the ERB.
Vanderbilt Complaint ¶¶ 32, 63-72. [RP 00007, 00018-20]
2
6. During the discussions Bruce Malott and Robert Vigil supported
the positions taken by Bill Richardson and his lawyers, and it became clear
that they were coordinating their positions.
7. At one point Robert Vigil said that Milton Sanchez should be fired
as Executive Director of the RHCA because “he stirred up the legislature.” I
responded that petitioning the legislature is constitutionally protected activity.
8. Paul Bardacke did most of the talking for Bill Richardson, while
Shannon Bacon participated actively. They said that Governor Richardson
would be willing to restore funding for the RHCA as part of the settlement.
The main sticking point then became the status of Milton Sanchez. My clients
wanted written protections for Milton Sanchez as part of the settlement
agreement. Mr. Bardacke balked at putting anything in writing, but he
promised that there would be no retaliation against Mr. Sanchez. Mr.
Bardacke said “You have my word, and the Governor’s word, that Milton
Sanchez will not be fired.” My clients relied on these promises in reaching a
settlement.
9. The settlement motion was signed and submitted by Shannon
Bacon, attached hereto.
3
10. Despite these promises, Milton Sanchez was fired in August 2005,
as soon as Bill Richardson and Bruce Malott could line up enough votes on
the RHCA Board.
11. Bill Richardson and Bruce Malott used the same tactics at the
Educational Retirement Board to get rid of Frank Foy and Evalynne
Hunemuller, because they stood as obstacles to Richardson’s pay to play
schemes. See paragraph 72 of the Vanderbilt Complaint. [RP 00020] In
December 2006 Malott forced Evalynne Hunemuller to resign. After that
Malott and the other conspirators harassed Frank Foy until he was forced to
retire.
12. Shannon Bacon continued to represent Bill Richardson during
Richardson’s administration. For example see Ms. Bacon’s letter on behalf of
Governor Richardson regarding the proposed Fort Sill Apache Gaming
Facility, attached to the Brief in Support of Motion for Recusal as Exhibit 3.
13. In April 2010, Bill Richardson appointed Shannon Bacon to be a
district court judge.
Under penalty of perjury under the laws of the State of New Mexico, I
affirm that this statement is true and correct.
Date: October 26, 2020 /s/ Victor R. Marshall

Victor R. Marshall
4
STATE OF NEW MEXICO ENDORSED

COUNTY OF BERNALILLO MY OFFICE THIS/(_;
FlLED IN MYOFFICETHISI!_;
:-,.
"i'."
SECOND JUDICIAL DISTRICT COURT 1_.,.
\_,
MAR 1 8 2005'
BOARD OF DIRECTORS OF THE
NEW MEXICO RETIREE HEALTH
CARE AUTHORITY; NEW MEXICO
ASSOCIATION OF EDUCATIONAL
RETIREES; RETIRED PUBLIC
EMPLOYEES OF NEW MEXICO;
RUBYE
RUBYE LEE GillSON; BETTY REA;
JERRY HANNERS; AND JOSEPHINE
JOSEPHlNE
RACZKOWSKI,
Petitioners,
vs. No. D-202-CV 2004-05109
JAMES JIMENEZ, SECRETARY, NEW

MEXICO DEPARTMENT OFOF FINANCE
AND ADMINISTRATION; AND
. HON. BILL RICHARDSON, GOVERNOR
OF THE STATE OF NEW MEXICO, .
.·Respondents.
Respondents.
STIPULATED MOTION TO DIS"MISSWITH

DIS.MISS WITH PREJUDICE
~ Come now Petitioners and Respondents,

Respondents, by and through their respective counsel of record,
\ }
\___)
"----" and respectfully request the Court dismiss this action, with prejudice. As grounds for this motion,
they have reached a resolution and settled this matter.

Petitioners and Respondents state that they
WHEREFORE, Petitioners and Respondents respectfully request an order, , in the form

.. . '
attached hereto, dismissing this .action with prejudice.
.r Case 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23 Page 131 of 305
. Respectfully submitted,
EAVES,
EAYES, BARDACKE, BAUGH,
& LARSON, P.A.
KIERST &
Bye- ·f11.
BYC, A · · Lk
PAUL~
KERRY KIERNAN
C. SHANNON BACON
N.B:., Ste. 950 .
6565 Americas Pkwy, N.E:.,
Albuquerque, New Mexico 87110
. (505) 888-4300
-- -'------·
---"-.'--'--
-~-
----~- . ---------
-~AtTORNEyS-~FOR"1~Es-p6N.bENTs--:--~·---·~---··
-~ATToRNEvs--FoRRES-P6ND£NTS---~----~--- -.- _. _-- '-----·
-----.
Approved by:
CUDDY, KENNEDY, ALB ETTA & NES, LLP

ALBETTA
By: Electronically approved

Electronicallv approved- 3117105
- 3/17/05
Frank J. Albetta
P.O. Box 4160
Santa Fe, NM 87504
(505) 988-4476 :
and
By: Telephonically approved

Telephonicallv approved- 3/18105
- 3/18/05
Victor R. Marshall
VictorR.
12509 Oakland NE
Phone: 505-332-9400
Attorneys for Petitioners
F:\CLIENT\ST32\005\P\Dismissal.doc
F:\CLIENT\ST32\005\P\Dismissal.doc
2
SUTIN THAYER ~ BROWNE

A PROFESSIONAL CORPORATION TWO PARK SQUARE
6565 AMERICAS PARKWAY, N.E.
LAWYERS ALBUQUERQUE, NEW MEXICO 87110
POST OFFICE BOX 1945
IRWIN S. MOISE (1906-1984) MICHAEL J. GOLDEN VICTOR P MONTOYA
LEWIS R SUTIN (1908-1992) GAIL GOTTLIEB JEAN c. MOORE ALBUQUERQUE, NEW MEXICO 87103
FRANKliN JONES (1919-1994) ANDREA R GUENDELMAN SARITA NAIR 505·883·2500
RAYMOND W. SCHOWERS (1948-1995) SUSAN M. HAPKA MICHElLE K. OSTRYE FAX 505·888·6565
GRAHAM BROWNE (1935-2003) HELEN HECHT CHARLES J. PIECHOTA
MICHAEL G. SUTIN (OF COUNSEl) JAYD. HERTZ JAY D. ROSENBLUM 317 PASEO DE PERALTA
BENJAMIN ALLISON ROBERT G. HEYMAN SANDRA E. ROTRUCK SANTA FE, NEWMEXICO 87501
C. SHANNON BACON CHRISTOPHER A HOLlAND FRANK C. SAlAZAR
PAULBARDACKE HENRY A KELLY RONALD SEGEL
POST OFFICE BOX 2187
JAMES E. BRISTOL III KERRY KIERNAN RAY SHOLLENBARGER SANTA FE, NEW MEXICO 87504
ANNE P BROWNE PETER S. KIERST ANDREW J. SIMONS 505·988·5521
SUZANNE WOOD BRUCKNER RACHEL S. KING JEANNE Y. SOHN FAX 505-982-5297
CRISTY J. CARBON-GAUL ANDREWP. KNIGHT TRAVIS R STEELE
MARK CHAIKEN 1W1LA B. LARKIN NORMAN S. THAYER WWW.SUTINFIRM.COM
SUSAN G. CHAPPELL DEREK V. LARSON BENJAMIN E. THOMAS
MARIA MONTOYA CHAVEZ C. JOSEPH LENNIHAN CHRISTINA S. WEST
SAUL COHEN STEVAN DOUGLAS LOONEY
J. KATHERINE GIRARD ELIZABETH J. MEDINA
February 27, 2008
VIA FACSIMILE AND U.S. MAIL
Chairman Philip N. Hogen

National Indian Gaming Commission
National Headquarters
1441 L St. N.W., Suite 9100
Washington, DC 20005
Proposed Fort Sill Apache Gaming

Facility in Luna County, New Mexico
Dear Chairman Hogen:
As you are no doubt aware, Governor Richardson has been corresponding with
the NIGC regarding the Fort Sill Apache Tribe's casino in southern New Mexico. At the
NIGC's request, we presented the State's opinion regarding and opposition to the Fort
Sill Apache Tribe's proposed casino on February 15, 2008. We have since discussed
the issue by phone with Esther Dittler and have sent a follow up letter to the NIGC
asking for action by the NIGC.
Despite the State's efforts to be responsive and to communicate information as

we learn it to the NIGC, we have heard nothing back from the NIGC regarding its
position or what action the NIGC plans to take. In the meantime, the Fort Sill Apache
Tribe has continued construction of a casino in New Mexico, has installed gaming
devices in the casino and has announced its plans to open the casino imminently.
The Tribe's intent to begin gaming on this land in New Mexico is contrary to the
purpose for which this land was taken into trust. It was well after the enactment of IGRA
that the Tribe acquired this land. It was not until 1998 that the Fort Sill Apache Tribal
Counsel asked that the Land be taken into trust for gaming purposes. Then Governor
Johnson was opposed to the land being taken into trust for gaming and made his
SUTIN THAYER T BROWNE

A PROFESSIONAL CORPORATION
LAWYERS

February 27, 2008
Page 2
opposition well known. Ultimately, as taking this land into trust was not acceptable to
Governor Johnson or the State of New Mexico, the Tribal Counsel passes a resolution
specifically stating that the Land would not be used for gaming. Based upon the Tribe's
agreement not to use this Land for gaming, Governor Johnson and the State rescinded
their objection to the fee to trust application, and the Bureau of Indian Affairs issued a
letter of intent to take the land into trust.
Despite the Tribe's commitment not to use this Land for gaming, it intends to
begin using the land for gaming, in contravention of IGRA, immediately. From our
communications with your office it does not appear that the NIGC or the Federal
government plan to take any action to stop the Tribe's conduct or to seek enforcement
of IGRA. If the NIGC and the Federal government choose to abdicate their
responsibility for this matter and fail to take action, the State will be forced to respond.
Accordingly, the State, to preserve the integrity of its laws and the integrity of lawful
gaming in New Mexico, is prepared to block access to the Fort Sill facility for non-tribal
members. Obviously, as we have repeatedly, we urge the NIGC to stop the illegal
opening of this casino.
Sincerely,
SUTIN, THAYER & BROWNE

A Professional Corporation
BYC_~ Paul Bardacke

C. Shannon Bacon
Albuquerque Office
SUTIN THAYER." BROWNE

LAWYERS

February 27, 2008
Page 3
PGB/CSB/JKG
cc: The Honorable Bill Richardson, Governor

The Honorable Gregory J. Fourrat, United States Attorney
The Honorable Jeff Houser, Tribal Chairman, Fort Sill Apache Tribe
The Honorable Pete Domenici, United States Senator
The Honorable Jeff Bingaman, United States Senator
The Honorable Heather Wilson, United States Representative
The Honorable Steve Pearce, United States Representative
The Honorable Tom Udall, United States Representative
The Honorable Dirk Kempthorne, Secretary of the Interior
The Honorable Gary King, New Mexico Attorney General
Penny J. Coleman, Acting General Counsel, NIGC
Esther Dittler, Staff Attorney, NIGC
James Jimenez, Chief of Staff for Governor Bill Richardson
1076705
SUTIN THAYER V BROWNE

LAWYERS

February 27 2008
I
Page 4
bcc: Justin Miller, Office of the Governor

Frank Baca, Gaming Control Board
Georgene Louis, Gaming Control Board
John Monforte, Gaming Control Board
Jorge Silva-Banuelos, Senator Bingaman's office
David Thompson, Deputy Attorney General
1076705
Filed
2/22/2022 10:09 AM
Office of the Clerk

2 February 22, 2022
3 NO. S-1-SC-38413
4
5 STATE OF NEW MEXICO ex rel.
6 FRANK C. FOY, JOHN CASEY, and
7 SUZANNE FOY,
8
9 Plaintiffs-Petitioners,
10
11 v.
12
13 VANDERBILT CAPITAL ADVISORS, LLC;
14 VANDERBILT FINANCIAL, LLC;
15 VANDERBILT FINANCIAL TRUST;
16 OSBERT M. HOOD; RON D.
17 KESSINGER; ROBERT P. NAULT;
18 JAMES R. STERN; PATRICK A. LIVNEY;
19 STEPHEN C. BERNHARDT; KURT W.
20 FLORIAN, JR.; ANTHONY J KOENIG,
21 JR.; MARK E. BRADLEY; PIONEER
22 INVESTMENT MANAGEMENT U.S.A.,
23 INC.; PIONEER GLOBAL ASSET
24 MANAGEMENT S.P.A.; UNICREDIT
25 S.P.A.; KATTEN MUCHIN
26 ROSENMAN LLP; RICHARDS,
27 LAYTON & FINGER, P.A.; CLIFFORD
28 PRICE WATERHOUSE COOPERS;
29 BRUCE MALOTT; MEYNERS + CO;
30 MARLA WOOD; GARY BLAND; SUSAN O.
31 BLAND; CITIGROUP; CITIGROUP
32 GLOBAL MARKETS INC.; BEAR,
33 STERNS & CO. INC.; JP MORGAN
34 SECURITIES, INC.; UBS INVESTMENT
35 BANK; UBS SECURITIES LLC; CALYON
36 SECURITIES (USA), INC.; CALYON
37 CREDIT AGRICOLE CIB; CREDIT
38 AGRICOLE SA; JEFFERIES CAPITAL
39 MANAGEMENT, INC.; FORTIS
40 SECURITIES LLC; FORTIS NV;

1 ACA MANAGEMENT, L.L.C.; ABN AMRO,

2 INC.; STONECASTLE SECURITIES, L.L.C.;
3 NEPC; ALLAN C. MARTIN; MERRILL
4 LYNCH & CO., INC.; LINDA CONTARINO;
5 CLAUDIA CORRERA; GAETANA
6 CORRERA; JOHN DOE #1; DAVID
7 CONTARINO (JOHN DOE #2); MARC
8 CORRERA (JOHN DOE #3); ANTHONY
9 CORRERA (JOHN DOE #4); and JOHN DOE
10 #5 THROUGH #100,
11
12 Defendants-Respondents,
13
14 and
15
16 AUSTlN CAPITAL MANAGEMENT,
17 LTD; AUSTIN CAPITAL MANAGEMENT
18 GP CORP.; CHARLES W. RILEY; BRENT A.
19 MARTIN; DAVID E. FRIEDMAN; WILL
20 JASON ROTTINGER; VICTORY CAPITAL
21 MANAGEMENT, INC.; KEYCORP; BEREAN
22 CAPITAL; DUDLEY BROWN; TREMONT
23 PARTNERS, INC.;TREMONT CAPITAL
24 MANAGEMENT, INC.; TREMONT
25 GROUP HOLDINGS, INC.; OPPENHEIMER
26 FUNDS, INC.; GARY BLAND; DAVID
27 CONTARINO; BRUCE MALOTT; MEYNERS
28 COMPANY; MARC CORRERA; ANTHONY
29 CORRERA; SANDIA ASSET MANAGEMENT;
30 ALFRED JACKSON; DAVIS HAMILTON
31 AND JACKSON; GUY RIORDAN; JUNIPER
32 CAPITAL; ILEEN KOTECKI; DAN
33 HEVESI; HENRY "HANK" MORRIS;
34 JULIO RAMIREZ; PAUL CROSS;
35 CROSSCORE MANAGEMENT; SDN
36 INVESTORS; PSILOS GROUP; ALBERT
37 WAXMAN; JEFFREY KRAUSS; STEPHEN
38 KRUPA; DAVID EICHLER; DARLENE
39 COLLINS; WETHERLY CAPITAL GROUP;
40 DAN WEINSTEIN; VICKY SCHIFF;

1 QUADRANGLE GROUP; ALDUS EQUITY;

2 SAUL MEYER; MERCELLUS TAYLOR;
3 MATTHEW O'REILLY; RICHARD ELLMAN;
4 DEUTSCHE BANK;DIAMOND EDGE
5 CAPITAL; MARVIN ROSEN; CARLYLE
6 MEZZANINE PARTNERS; CARLYLE
7 GROUP; DB INVESTMENT MANAGERS;
8 TOPIARY TRUST; PARK HILL GROUP;DAN
9 PRENDERGAST; CATTERTON PARTNERS;
10 BLACKSTONE GROUP; GOLD BRIDGE
11 CAPITAL; DARIUS ANDERSON; KIRK
12 ANDERSON; ARES MANAGEMENT;
13 INROADS GROUP; CAMDEN PARTNERS;
14 HFV; BARRETT WISSMAN; TAG; AJAX
15 INVESTMENTS; CAYTON DUBILIER AND
16 RICE; INTERMEDIA; LEO HINDERY;
17 WILLIAM R. HOWELL; CABRERA CAPITAL;
18 MARTIN CABRERA; CRESTILNE
19 INVESTORS; JOHN DOE #1; AND JOHN DOE
20 #3 THROUGH #50,
21
22 Defendants-Respondents.
23
24 NOTICE OF RECUSAL
25 The parties hereby are notified of the recusal of Justice C. Shannon Bacon
26 from the above-entitled proceeding.
27 IT IS SO ORDERED.
WITNESS, the Honorable Michael E. Vigil, Chief

Justice of the Supreme Court of the State of New
Mexico, and the seal of said Court this 22nd day of
February, 2022.
Jennifer L. Scott, Clerk of Court

Page 1
BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT

THE STATE OF NEW MEXICO
IN THE MATTER OF
VICTOR MARSHALL, ESQ.,
an attorney licensed to
practice law before the Disciplinary No.
courts of the State of 05-2018-782
New Mexico.
VIDEO DEPOSITION OF HONORABLE JAMES J. WECHSLER

September 21, 2018
9:30 a.m.
408 Galisteo Street
Santa Fe, New Mexico
PURSUANT TO THE NEW MEXICO RULES OF CIVIL

PROCEDURE, this deposition was:
TAKEN BY: MR. JEFFREY L. BAKER
Attorney for Victor Marshall
REPORTED BY: MABEL JIN CHIN, NM CCR #81

Bean & Associates, Inc.
Professional Court Reporting Service
201 Third Street Northwest, Suite 1630
(1060N) MC
info@litsupport.com BEAN & ASSOCIATES, INC. 505-843-9494

201 Third St. NW, Ste. 1630, Albuquerque NM 87102
Page 13
1 to preside over all of the water cases?

2 A. They -- the Supreme Court put out some kind
3 of a request, or something of that nature, to judges
4 and retired judges soliciting interest, and I
5 indicated my interest.
6 Q. Do you know if any other judges indicated
7 their interest?
8 A. Oh, yes. Yes, I know, and yes, they did.
9 Q. Okay. What was the process for, if you
10 know, for submitting information showing that you were
11 interested, and then the selection process?
12 A. Gee, if I recall correctly, I submitted a
13 letter, and the process included a -- an interview,
14 and I presume a recommendation by the interview
15 committee to the Supreme Court.
16 Q. Do you recall who was on the interview
17 committee?
18 A. It was Celina Jones, Justice Bosson, and
19 Steve Snyder.
20 Q. And who was Steve Snyder?
21 A. Steve Snyder was the Special Master in a
22 number of the adjudications.
23 Q. And a Special Master reports to the judge?
24 A. Yes, sir.
25 Q. Do you still have a copy of the letter you

Page 14
1 submitted?
2 A. No, sir.
3 Do you know if -- strike that.
4 Do you know to whom you submitted the
5 letter?
6 A. I don't know. I mean, I'm guessing to
7 Celina Jones. She was the -- at that time she was the
8 water attorney for the Administrative Office of the
9 Courts.
10 Q. And the reason I'm asking is if I look for
11 that letter can you give me a suggestion about where
12 is the best place to start?
13 A. That would be the best suggestion I would
14 have.
15 Q. All right. Thank you. What was your
16 interest in -- I'm going to refer to you as the water
17 judge, if that's all right. What prompted you to want
18 to apply for that position?
19 A. I was interested in it and I had developed
20 an interest in -- in the -- in water law.
21 Q. Anything else that you can tell us about how
22 you developed that interest or when?
23 A. By handling cases at the Court of Appeals,
24 and I had, in private practice, I did some work for
25 water companies, but not -- nothing related to

Page 15
1 adjudications.
2 Q. Okay.
3 A. But I was interested in the area.
4 Q. And I'm going to assume, but correct me,
5 that by taking on the four and then the five water
6 adjudication cases, that you had a lighter Court of
7 Appeals load?
8 A. No, sir, I did not.
9 Q. It doesn't seem fair. Where did you go to
10 law school?
11 A. NYU.
12 Q. What year did you graduate?
13 A. 1969.
14 Q. And when did you move to New Mexico?
15 A. Um -- November of 1970.
16 Q. What did you do between graduating from law
17 school in 1969 and moving to New Mexico in November
18 1970?
19 A. I worked for a law firm in New York City.
20 Q. When did you take the New Mexico bar exam?
21 A. January -- I believe it was January of 1971.
22 It might have been February. I'm not sure which month
23 it was.
24 Q. And you learned that you passed the exam
25 shortly thereafter?

STATE OF NEW MEXICO

COUNTY OF SAN JUAN
ELEVENTH JUDICIAL DISTRlCT
STATE OF NEW MEXICO, ex rei.

THE STATE ENGINEER,
Plaintiff,
vs. No. CV 75-184
Honorable James J. Wechsler
NITED STATES OF AMERlCA, et ai.,
UNITED
THE U al., Presiding Judge
Defendants, SAN JUAN RlVER BASIN

ADJUDICATION
vs.
THE JICARlLLA APACHE TRlBE SAN JUAN RlVER

AND THE NAVAJO NATION, GENERAL STREAM
LITIGATION
Defendant-Intervenors.
NOTICE OF CONSTITUTIONAL DEFECT IN SERVICE LIST
Defendants hereby give notice that there is a constitutional defect in the service list
which was prepared by the Settling Parties and used by the Court. Many water users in the
San Juan Basin have reported that they did not receive a mailing from the Court notifying
them of this proceeding, even though they are listed on County records as the owners of
irrigated property, or shown on ditch membership lists. Other evidence also establishes that
the Settling Parties provided the Court with a mailing list which does not meet the
requirements of:
(A) the United States Constitution;
(B) the New Mexico Constitution;
(C) the New Mexico Rules of Civil Procedure, including Rules 1-071.1, 1-071.2, and
1-004; and
(D) the orders of the Court and the Special Master.

Beginning in the latter part of2010, the undersigned defendants made numerous
attempts over period of months to assist the Settling Parties in assembling the best possible
mailing list from a variety of sources, including ditch membership lists. The defendants'
efforts were rebuffed by the Settling Parties, and in particular the OSE. Despite numerous
requests, the Settling Parties even refused to provide a copy of their mailing list to
defendants so that it could be improved. See the live and written testimony of Shirley A.
Meridith on October 26,2011, including defendants' Exhibit 1.
In addition, the testimony of Arianne Singer during the hearing on July 19, 2011
establishes that the current OSE and the Settling Parties do not know how the mailing list
was assembled, or how it was processed, or what original sources were used, or the dates of
the source materials. The bulk of the information in the mailing list was more than a year
old, but the Settling Parties made no effort to update it before they made their mailing in
May 2011, even though the defendants repeatedly offered to help them obtain more current
and accurate ditch membership lists.
These defects could have been cured with reasonable effort before the mailing was
made, but the Settling Parties made no effort to do so. Their mailing list does not comply
with the requirements of the Constitutions of the United States and the State of New
Mexico, and the other authorities listed above. Under the law, the Settling Parties as
plaintiffs were required to use the best available sources to assemble the mailing list, and
they did not do so. Although it may not be feasible to prepare a mailing list that is
absolutely perfect, the law requires the Settling Parties to do much more than they did. The
problem is compounded by the absence of the mandatory hydrographic survey required by
NMSA 1978, §§ 72-4-13 through -17. A real hydrographic survey would have identified the
2
current owners of all the irrigated tracts in the San Juan Basin, but the OSE and the Settling
Parties did not do one.
The problem of a grossly defective mailing list is not solved by publication, because
notice by publication is in addition tO,not a substitute for, preparation of a service list from
the best available sources.
This constitutional defect is somewhat reduced, but not solved, by the entries of
appearances and notices of intent to participate filed on September 15, 2011 by the
undersigned law firm on behalf of 10,025 named defendants. If the Court recognizes those
entries and notices of intent as listed, subject to amendment, then those listed persons would
have little basis for a challenge based on inadequacy of notice, since they have been given
the opportunity to participate through counsel. Ifnot, then the constitutional problem
grows much bigger.
Regardless of the September 15 entries of appearance, the defendants have no way of
curing the constitutional defect with respect to the persons who are not on the September 15
lists. and who did not receive notice. There are many such persons, given the gross
inadequacy of the mailing list which the Settling Parties provided.
Accordingly, the current adjudication efforts of the Court, the Special Master, and all
the litigants are subject to a very real risk that this proceeding, whatever its outcome, can be
nullified by persons who did not get notice. The Navajo inter se is off to a false start,
constitutionally speaking.
The Court can cure this constitutional defect right now, by ordering the Settling
Parties to actually do what they were already ordered to do: prepare a comprehensive
mailing list from the best available current sources. One of those available sources is the
33
ditch membership lists fIled on September 15, 2011. There are other sources which the
Settling Parties can obtain by diligent effort. Through a merge/purge process, the new
mailing list can be compared to the old mailing list, so that the Settling Parties are only
mailing to the people they missed the first time around.
This is a notice, not a motion by the undersigned defendants. The defendants have
already wasted too much time and money trying to reduce this problem. The defendants do
not have the power to cure this constitutional defect; only the Court does. And it is the
Settling Parties' duty and burden to prepare an adequate service list, not the defendants'
burden.
This problem should be addressed by the Court, and also by the incoming State
Engineer, whoever that might be.
Respe~
VICTO "
& S, P.C.
By ,
Victor R. Marshall .
12509 Oakland NE
505-332-9400/505-332-3793 FAX
CERTIFICATE OF SERVICE
4
4
Victor Archive
From: Steve Snyder <sesnyder@q.com>

Sent: Monday, October 31, 2011 2:37 PM
To: 'Victor Marshall'
Subject: RE: SAN JUAN RIVER BASIN ADJUDICATION - General Stream Litigation- MAIN Case No. CV-75-184
Celina:

More dilatory tactics by Marshall. To what extent were these issues raised at the hearing before Judge Wechsler last
week. The filing of a notice is not a request for relief so I am not sure what to make of this filing. Is this something
Judge Wechsler can (and wants to) addresses in his order re last weeks’ hearing?

Steve Snyder
4 Manzano Road
Corrales NM 87048
(505) 890-7550
sesnyder@q.com

From: owner-wrattorney@11thjdc.com [mailto:owner-wrattorney@11thjdc.com] On Behalf Of Victor Marshall
Sent: Monday, October 31, 2011 12:36 PM
To: wrlaplata@11thjdc.com; wrattorney@11thjdc.com; Victor Marshall; Shirley Meridith; Sheri Heying
Subject: SAN JUAN RIVER BASIN ADJUDICATION - General Stream Litigation- MAIN Case No. CV-75-184
Dear Counsel:
Please find attached the following document, fax-filed with the Court today: Notice of
Constitutional Defect in Service List
Sincerely,
Sheri Heying for

Victor R. Marshall, Esq.
505-332-9400
505-332-3793 Fax
sheri@vrmarshall.com
No virus found in this message.
Checked by AVG ‐ www.avg.com
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1
DISTRICT COURT
OISTRICT
SAN JUAN COUHTY
COUNTY HM
STATE OF NEW MEXICO
d1V FIL EO
d1VF'ILEO
COUNTY OF SAN JUAN AM II: sq
lOH NOV -2 AH
lOU S4
ELEVENTH JUDICIAL DISTRICT
STATE OF NEW MEXICO, ex r~/.

r~l. CV-75-184
STATE ENGINEER,
HON. JAMES J. WECHSLER
Plaintiff, PRESIDING JUDGE
v. SAN JUAN RIVER

ADJUDICATION
THE UNITED STATES OF AMERICA,
etaL,
eta!, Claims of Navajo Nation
Case No: AB-07-1
Defendants,
NOTICE OF SPECIAL MASTER'S WITHDRAWAL FROM NAVAJO INTER SE
THIS MAITER comes before the Special Master on his own motion.
that, as of the filing of this notice, he is

The Special Master hereby gives notice that.
withdrawing from the Navajo Inter Se. All matters pending before the Special Master
are now scheduled before the Presiding Judge.
$~
Stephen E. snyder
4 Manzano Road
Corrales NM 87048
(505) 890-7550
RP 0007547
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
STATE OF NEW MEXICO, ex rel.

THE STATE ENGINEER,
Plaintiff-Appellee,
v. Ct. App. No. A-1-CA-33535

See also
Nos. A-1-CA-33437, -33439,
and -33534
San Juan County
D-1116-CV-1975-00184 and
AB-07-1
Defendant-Appellee,
v.
SAN JUAN AGRICULTURAL WATER USERS ASSOCIATION;

HAMMOND CONSERVANCY DISTRICT; BLOOMFIELD
IRRIGATION DISTRICT; VARIOUS DITCHES AND VARIOUS
MEMBERS THEREOF,
Defendant-Appellants,
v.
NAVAJO NATION,
Defendant-Intervenor-Appellee.
EMERGENCY MOTION TO ENFORCE RULE 21-211

The reasons for this motion are as follows:
In 2013, without a trial, Judge James Wechsler granted summary
judgment to the Navajo Nation on its claim for water in the San Juan River
basin in New Mexico. Judge Wechsler awarded the Navajo Nation 635,729
acre-feet of water per year, in perpetuity. That is roughly one quarter of all the
stream water in the entire State of New Mexico. It is more than six times the
amount of water used by the Albuquerque metropolitan area, and twice as
much as the City of Phoenix.
To make that award to the Navajo Nation without a trial, Judge
Wechsler rejected the beneficial use requirement and the PIA (practicably
irrigable acreage) standard for Indian water rights. Judge Wechsler had no
legal authority to reject the beneficial use and PIA requirements, because these
requirements are imposed by both federal and state law, including: the
Reclamation Act of 1902; Article XVI of the New Mexico Constitution;
NMSA 1978, § 72-1-2; Winters v. United States, 207 U.S. 564 (1908); the
Colorado Compacts, § 72-15-5 and § 72-15-26; Arizona v. California, 373 U.S.
545 (1963); State ex rel. Martinez v. Lewis, 1993-NMCA-063, 116 N.M. 194
(“Mescalero”); State ex rel. Erickson v. McLean, 1957-NMSC-012, 62 N.M. 264;
Mimbres Valley Irrigation Co. v. Salopek, 1977-NMSC-039, 90 N.M. 410; State ex
1
rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375; and the
Colorado River Storage Act, Pub. L. No. 84-485, 70 Stat. 105 (Apr. 11, 1956).
Instead, Judge Wechsler decided to adopt the amorphous “homeland”
concept espoused by the Arizona Supreme Court in In re General Adjudication of
All Rights To Use Water in Gila River, 35 P.3d 68 (Ariz. 2001) (“Gila V”). Gila V
allows the trial judge to set a number for a tribe’s water rights, unconstrained
by beneficial use. The award can be based on a “myriad of factors” chosen by
the judge, such as tribal history, rituals, culture, topography, human resources,
technology, potential employment base, and projected population. Gila V is
an aberration: it contradicts the water law adopted by the courts of the United
States and New Mexico. Gila V has been rejected by the other courts that have
considered it.
Judge Wechsler also refused to comply with State ex rel. Clark v. Johnson,
1995-NMSC-048, 120 N.M. 562. Without approval from the New Mexico
Legislature, he awarded the Navajo Nation more than half of New Mexico’s
statutory share of water under the Colorado River Compacts, NMSA 1978, §§
72-15-5 and -26.
2
In January 2018, disquieting rumors about Judge Wechsler began to
circulate in the New Mexico Legislature, prompting some legislators to ask
whether or not the rumors could be substantiated.
Since then, a preliminary but incomplete investigation has revealed:
! James J. Wechsler was employed by the Navajo Nation for
approximately six years as an attorney at Diné Bee5iiná Náhiilnah Bee
Agha5diit55aahii (or “Attorneys Who Contribute to the Economic
Revitalization of the People”), commonly known as DNA Legal Services, an
agency and instrumentality of the Navajo Nation.
! Upon information and belief, James Wechsler lived with his family
on the Navajo Reservation at Crownpoint, New Mexico from approximately
1970 to 1976. He worked primarily at the DNA law offices in Crownpoint,
which is the headquarters of the Navajo Nation Eastern agency. Crownpoint
is located within the San Juan River basin, in the area for which Judge
Wechsler awarded water rights to the Navajo Nation.
! As an advocate for the Navajo Nation and tribal members, James
Wechsler participated in several important cases advancing the rights of
Navajo people, including: Haceesa v. Heim, 1972-NMCA-088, 84 N.M. 112;
Natonabah v. Board of Ed. of Gallup-McKinley Cnty. Sch. Dist., 355 F. Supp. 716
3
(D.N.M. 1973); McClanahan v. State Tax Comm’n, 411 U.S. 164 (1973); Morton
v. Mancari, 359 F. Supp. 585 (D.N.M. 1973), rev’d, 417 U.S. 535 (1974).
! Judge Wechsler did not disclose to all the parties on the record that he
had worked as an attorney for the Navajo Nation.
! The Navajo Nation also knew that Judge Wechsler had previously
worked for it as a lawyer, but it did not disclose these facts either.
VIOLATIONS OF RULE 21-211 NMRA AND OTHER RULES
(A) Judge Wechsler did not disclose to the parties in this case that he
had previously represented the Navajo Nation, one of the adversaries in this
litigation. Rule 21-211 requires a judge to volunteer on the record information
that the parties or their lawyers might reasonably consider relevant to a
possible motion for disqualification, even if the judge believes there is no basis
for disqualification.
(B) Judge Wechsler did not comply with the requirements of Rule 21-
211(C) for seeking a remittal of disqualification from the parties.
(C) Judge Wechsler did not comply with Rule 21-211(A): “A judge
shall disqualify himself or herself in any proceeding in which the judge’s
impartiality might reasonably be questioned . . . .”
4
(D) Because of his service to the Navajo Nation and the years he lived
on the reservation, Judge Wechsler has personal extrajudicial knowledge
about the Navajo Nation and the “myriad of factors” under Gila V which he
could select to award water to the Navajo people – the people he represented
as an attorney. Rule 21-211(A)(1) requires judges to recuse themselves when
they have personal knowledge relating to the matters in controversy.
(E) Having previously worked as a lawyer for the Navajo Nation, Judge
Wechsler has a continuing duty under Rule 16-109 not to use information to
the disadvantage of his former clients. Because the information he learned as
a lawyer for the Navajo Nation can be used for the benefit of his former
clients, but not against them, Judge Wechsler has a one-way bias imposed by
Rule 16-109 itself.
(F) Because Judge Wechsler worked as an attorney and advocate for the
Navajo Nation and the Navajo people, he has a continuing duty of loyalty to
his former clients:
In the practice of law, there is no higher duty than one’s loyalty

to a client. This duty applies to current and former clients alike.
Roy D. Mercer, LLC v. Reynolds, 2013-NMSC-002, ¶ 1, 292 P.3d 466.
Loyalty to present and past clients is a positive bias which springs
directly from a lawyer’s ethical obligations under the Rules of Professional
5
Conduct. “As advocate, a lawyer zealously asserts the client’s position under
the rules of the adversary system”. Preamble to the Rules of Professional
Conduct. The undivided loyalty and zeal required of a lawyer advocate
cannot be reconciled with the strict impartiality that is required of all judges in
all cases.
(G) Judge Wechsler did not comply with Rule 21-211(A)(5) regarding
prior involvement or prior government service relating to the matters in
controversy.
(H) Judge Wechsler has not complied with Rules 21-100 and 21-102,
which require judges to act with independence, integrity, and impartiality, to
avoid impropriety or even the appearance of impropriety, and to promote
public confidence in the judiciary.
In short, the Code of Judicial Conduct does not allow a judge to sit on a
case involving a party that the judge previously represented as a lawyer, while
not disclosing the facts to all the parties in the case.
The concurrence of opposing counsel has not been sought, due to the
nature of the motion and the virtual certainty that the Navajo Nation will
oppose it.
6
WHEREFORE, the acequia defendants respectfully move this Court to
enforce the Code of Judicial Conduct and the Code of Professional Conduct
by recusing Judge Wechsler from this case, vacating his rulings, and ordering
that this case be heard de novo by an impartial judge.

Victor R. Marshall
Attorneys for the San Juan Acequias
12509 Oakland NE
505-332-9400

copy of the foregoing was efiled and served
via Odyssey File and Serve to counsel
of record on February 26, 2018.

Victor R. Marshall
7
Case 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23 Page 158 of 305 Filed
Court of Appeals of New Mexico
2/26/2018 7:57:11 PM
Office of the Clerk
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Mark Reynolds
STATE OF NEW MEXICO, ex rel.
THE STATE ENGINEER,
Plaintiff-Appellee,
v. Ct. App. No. A-1-CA-33535

See also
Nos. A-1-CA-33437, -33439,
and -33534
San Juan County
D-1116-CV-1975-00184 and
AB-07-1
Defendant-Appellee,
v.
SAN JUAN AGRICULTURAL WATER USERS ASSOCIATION;

HAMMOND CONSERVANCY DISTRICT; BLOOMFIELD
IRRIGATION DISTRICT; VARIOUS DITCHES AND VARIOUS
MEMBERS THEREOF,
Defendant-Appellants,
v.
NAVAJO NATION,
Defendant-Intervenor-Appellee.
BRIEF IN SUPPORT OF
EMERGENCY MOTION TO ENFORCE RULE 21-211
INTRODUCTION
This motion is filed reluctantly, but it is required by the Code of Judicial
Conduct and the Rules of Professional Conduct. See State v. Barnett, 1998-
NMCA-105, 125 N.M. 739 (prosecutor was disqualified because she had
previously represented the defendant in a substantially related matter; defense
counsel fell below the standard of a reasonably competent attorney when he
failed to investigate the scope of the prior representation and to assert the right
to disqualify).
PART I
JUDGE WECHSLER AND THE NAVAJO NATION DID NOT

DISCLOSE THAT THE NAVAJO NATION HAD EMPLOYED HIM
AS AN ATTORNEY FOR APPROXIMATELY 6 YEARS.
The record in this case demonstrates that the disclosures required by
Rule 21-211 were never made. Neither Judge Wechsler nor the Navajo Nation
disclosed that he had been employed by the Navajo Nation as an attorney.
The acequia defendants and the undersigned counsel had no inkling about this
until January 2018, when counsel heard rumors and therefore became
obligated to investigate them.
Judge Wechsler and the Navajo Nation knew these facts, but chose not
to reveal them. This is not a case of oversight or forgetfulness. It is likely that
1
the United States also had this information. Whether the Office of the State
Engineer was privy to these facts cannot be determined at this time.
A preliminary investigation has revealed the following information so
far:
James Wechsler worked for the Navajo Nation as a lawyer from
approximately 1970 to 1976. He was employed by DNA Legal Services at the
DNA bureau in Crownpoint, New Mexico, where he lived with his family.
DNA is an abbreviation for the Navajo phrase Diné Bee5iiná5 Náhiilnah
Bee Agha5diit5aahii, which means “Attorneys Who Contribute to the
Economic Revitalization of the People.”
DNA was and is an agency or instrumentality of the Navajo Nation.
The head of the DNA, Peterson Zah, was elected Chairman of the Navajo
Nation in 1982. More information on DNA is set forth in Exhibit 1, Peter
Iverson, Diné A History of the Navajos (2002) (excerpts).
As a DNA attorney, James Wechsler was involved as a lawyer in several
major cases on behalf of the Navajo tribe:
! Haceesa v. Heim, 1972-NMCA-088, 84 N.M. 112. The parents of

Indian children at boarding schools are entitled to receive AFDC
benefits so that their children could come home on weekends and
holidays. Mr. Wechsler was the lead attorney on the appeal.
2
! Natonabah v. Board of Ed. of Gallup-McKinley Cnty. Sch. Dist., 355

F. Supp. 716 (D.N.M. 1973). The federal court in New Mexico
ruled that Gallup school officials were discriminating against
Navajo Indian children and diverting federal monies allocated
exclusively for the benefit of Indian children. James Wechsler
participated as one of the attorneys for plaintiffs.
! McClanahan v. State Tax Comm’n, 411 U.S. 164 (1973). This is a

landmark decision in favor of Indian sovereignty. The U.S.
Supreme Court held that states have no power to impose income
tax on Indians who live on a reservation and derive their income
from reservation sources. It is not clear in what manner Mr.
Wechsler participated in various stages of this case. DNA
Attorney Wechsler commented, “If the decision had gone the
other way, Indian independence from state control would have
been threatened.” Exhibit 1, Diné at 252 and n.46.
! Morton v. Mancari, 359 F. Supp. 585 (D.N.M. 1973), rev’d, 417

U.S. 535 (1974). The Supreme Court held that the employment
preference for Native Americans in the Bureau of Indian Affairs
was not repealed by the Equal Employment Opportunities Act of
1972. The preference for Indians did not constitute invidious
racial discrimination but was designed to further Indian self-
government. Mr. Wechsler is listed as the lead attorney before the
three judge panel in the United States District Court for New
Mexico.
This Court can take judicial notice of these cases.
Mr. Wechsler participated in many other lawsuits besides these, and
some of those can be provided to the Court if the Court instructs movants to
conduct further investigation. The San Juan acequias reserve the right to
conduct further investigations, but they would prefer not to.
3
Accordingly, the acequias hereby move this Court to order Judge
Wechsler and the Navajo Nation to make complete disclosures about his
service to the Navajo Nation, because full disclosure was required by Rule 21-
211. The disclosures should have been made years ago.
In fairness to Judge Wechsler, it should be emphasized that there is
nothing reprehensible about Mr. Wechsler’s work for the Navajo Nation and
its members. On the contrary, providing legal services to underserved
segments of the population is one of the highest traditions of the bar.
And there can be no doubt that Mr. Wechsler acted as a zealous,
effective, loyal, and dedicated advocate for his clients – just as he was required
to do by the Rules of Professional Conduct for lawyers.
But that is exactly why Judge Wechsler cannot sit on this case. As a
lawyer for the Navajo Nation, he had a duty to act with zeal and undivided
loyalty as a champion for the interests of the Navajo Nation. That is the polar
opposite of the duty of impartiality which is imposed on every judge in every
case.
The American system of justice depends on lawyers who zealously
represent their clients against all adverse parties. “As advocate, a lawyer
zealously asserts the client’s position under the rules of the adversary system.”
4
Preamble to the Rules of Professional Conduct. At the same time, the rules of
the adversarial system entrust the decision to a judge who must be completely
impartial and disinterested.
For these reasons, the American justice system has always strictly
separated the role of the judge from the role of the lawyer. For example, in
1792 the first session of the second Congress passed “An Act for Regulating
Processes in the Courts of the United States.” It mandated
That in all suits and actions in any district court of the United
States, in which it shall appear that the judge of such court is, any
ways, concerned in interest, or has been of counsel for either party,
it shall be the duty of such judge on application of either party, [to
transfer the case] to the next circuit court of the district . . . .
Act of May 8, 1792, ch. 36, § 11, 1 Stat. 278-79 (emphasis added).
PART II
JUDGE WECHSLER HAS EXTRAJUDICIAL KNOWLEDGE ABOUT

THE FACTS THAT ARE BEING CONTESTED IN THIS CASE,
INCLUDING: CONDITIONS IN THE NAVAJO HOMELAND,
THE NAVAJO INDIAN IRRIGATION PROJECT (NIIP),
AND THE FACTORS WHICH HE USED TO AWARD WATER
UNDER GILA V.
Rule 21-211 prohibits a judge from sitting on a case if he or she has
personal knowledge about the matters at issue in the case. Rule 21-211(A)(1).
When the judge has extrajudicial knowledge relating to the case,
5
disqualification is mandatory, not optional. Rule 21-211(C). The judge must
recuse even if the judge has no bias for or against any party.
Recusal is mandatory because the law requires a judge to decide each
case solely on the admissible evidence presented in court, not on what he or
she might already know or believe about the parties or the events in question.
Judges, like jurors, must “determine the facts . . . solely upon the evidence
received in court.” Uniform Jury Instruction 13-110. When a judge has
extrajudicial knowledge, it is difficult or impossible for the judge to segregate
the information in court from information learned elsewhere. The information
from elsewhere may well be faulty or incomplete, because human beings do
not have perfect knowledge or perfect recollection.
Furthermore, the litigants and their advocates have no way of knowing
what the judge might or might not know, so they have no way to confront and
refute the knowledge that comes from outside the courtroom.
Because Judge Wechsler spent six years living on the reservation
working for the Navajo Nation, he has a huge amount of extrajudicial
knowledge, far more than he could ever consciously recollect.
6
Judge Wechsler has vast personal knowledge and experience about the
conditions on the Navajo reservation – the homeland for the Navajo people he
so ably served.
When Judge Wechsler adopted the “homeland theory” under Gila V to
award 635,000 acre-feet of water to the Navajo reservation in New Mexico,
Judge Wechsler made conditions on the reservation into one of the central
matters in this litigation. Yet Judge Wechsler never disclosed that he had his
own knowledge about those matters, from years of personal experience on the
reservation.
Furthermore, Judge Wechsler’s summary award to the Navajo Nation
could not have been based solely on evidence admitted and tested in court,
because there was no trial in this case. Judge Wechsler’s handling of this case
contrasts sharply with Justice Oman’s adjudication of water rights for the
Mescalero Apache Indian Reservation. State ex rel. Martinez v. Lewis, 1993-
NMCA-063, 116 N.M. 194. Justice Oman conducted a full trial in order to
quantify the water rights of the Mescalero Apache under the Winters doctrine.
Judge Wechsler also has extrajudicial knowledge about another key issue
in this case – the Navajo Indian Irrigation Project (NIIP). NIIP was a major
development project for the Navajo Nation during the years that Mr. Wechsler
7
worked for the Navajo government. NIIP began construction in 1964 and
completed the main canals and lateral distribution systems by 1977.
https:/www.usbr.gov (Select a project: Navajo Indian Irrigation Project; Tab:
Construction). During Mr. Wechsler’s time on the reservation, from 1970 to
1976, the Navajo Nation promoted NIIP as a gigantic step forward to
“Contribute to the Economic Revitalization of the People”.
Unfortunately, after Mr. Wechsler left in 1976, NIIP proved to be a
miserable failure:
Most disappointing was the failure of the Navajo Agricultural

Products Industries (NAPI) to become a viable operation. The
Navajo Nation kept pouring money into this enterprise designed to
develop irrigated farmland in conjunction with the irrigation
project along the San Juan River. The Navajo Indian Irrigation
Project (NIIP) had not been a very high priority for [Tribal
Chairman] Raymond Nakai, who laughed scornfully about it. He
told Shiprock Council delegate Carl Todacheene that such an
undertaking was unimportant, except for Navajos who “only knew
the tail of the sheep.” MacDonald thought that the NIIP was
more important, but other issues more fully engaged his attention.
Mismanagement, administrative turnover, and the lack of progress
on the irrigation system itself plagued the NAPI.
Exhibit 1, Diné at 264.
During the summary judgment proceedings in 2013, the acequia
defendants presented evidence from government reports proving that NIIP had
never come close to breaking even, not even with massive government
8
subsidies. RP15291-92. The Navajo Nation finally admitted to Judge
Wechsler that NIIP was not viable. The Nation’s attorney, Stanley Pollock,
conceded that NIIP was not “practicably irrigable acreage”, or PIA. RP16948,
16954-56. PIA is the legal standard imposed by the United States Supreme
Court and the New Mexico courts for awarding water rights to Indian tribes,
and the Navajo Nation admitted that it could not meet that legal standard for
NIIP.
Nevertheless, Judge Wechsler awarded 508,000 acre-feet of water for
NIIP, in violation of the PIA standard. RP17930. In order to do this, he
rejected the law of the United States and New Mexico, and substituted the Gila
V “homeland theory”. In Judge Wechsler’s opinion, he gave himself the legal
authority to award water based on his own evaluation of conditions on the
Navajo Reservation, unconstrained by beneficial use and the PIA test.
RP33749-813.
As it now turns out, Judge Wechsler had extensive knowledge about the
Navajo homeland, but this was based on his undisclosed employment by the
Navajo Nation, not on evidence that was admitted and confronted in open
court.
9
There is yet another problem created by Judge Wechsler’s undisclosed
extrajudicial knowledge. Because Judge Wechsler once served as an attorney
for the Navajo Nation, Rule 16-109 requires him to use the information he
learned only for the benefit of the Navajo Nation, not its detriment. See Rule
16-109 – Duties to Former Clients, especially Rule 16-109(C):
C. Former Representation. A lawyer who has formerly

represented a client in a matter or whose present or former firm
has formerly represented a client in a matter shall not thereafter:
(1) use information relating to the representation to the
disadvantage of the former client except as these rules would
permit or require with respect to a client, or when the information
has become generally known; or
(2) reveal information relating to the representation except
as these rules would permit or require with respect to a client.
See also In re C’de Baca, 1989-NMSC-070, ¶ 7, 109 N.M. 151.
A lawyer’s obligation to use information only for the client’s benefit
continues in perpetuity, long after the client has become a former client.
Under Rule 16-109 Judge Wechsler still has a continuing duty to use his
information only for the benefit of the Navajo Nation. To protect the prior
attorney-client relationship between Mr. Wechsler and the Navajo Nation,
Rule 16-109 imposes an actual bias in favor of the Navajo Nation. Thus Judge
Wechsler is disqualified from deciding this case, because he has extrajudicial
10
knowledge, and because he has an ongoing ethical duty to use his knowledge
only for the benefit of the Navajo people.
A lawyer’s continuing obligation to use information only for the benefit
of his former clients is part of his broader obligation of loyalty to clients. “In
the practice of law, there is no higher duty than one’s loyalty to a client.
This duty applies to current and former clients alike.” Roy D. Mercer, LLC v.
Reynolds, 2013-NMSC-002, ¶ 1, 292 P.3d 466; Living Cross Ambulance Serv., Inc.
v. New Mexico PRC, 2014-NMSC-036, ¶¶ 13, 22, 338 P.3d 1258 (vacating PRC
decision vacated due to attorney’s prior representation of a party in the case).
Given the circumstances in this particular case, Mr. Wechsler’s
continuing loyalty to his former clients clashes with Judge Wechsler’s duty to
be impartial to all parties.
PART III
THE MODERN RULES ON JUDICIAL DISQUALIFICATION AND

DISCLOSURE ARE ESSENTIAL TO PROTECT PUBLIC
CONFIDENCE AND THE INTEGRITY OF THE JUDICIAL PROCESS.
As promulgated by the New Mexico Supreme Court, Rule 21-211 of the
Code of Judicial Conduct is substantially identical to Rule 2.11 of the ABA
Model Code of Judicial Conduct and 28 U.S.C. § 455, enacted in 1974. The
organization and numbering of sections varies, but their substance is almost
11
identical. Collectively, this brief refers to the three codes as “the modern rule”
on judicial disqualification and disclosure.
In 1974, as part of the reforms during the Watergate era, Congress
determined that the old recusal statute allowed federal judges too much
subjectivity and discretion in deciding when to disqualify themselves,
weakening public confidence in the fairness of the judiciary. Congress was
also concerned about cases in which judges should have recused themselves,
but did not. Congress also wished to conform federal law to the newly adopted
Canon 3C of the American Bar Association’s Model Code of Judicial
Conduct. Some members of Congress also believed that on matters of recusal,
attorneys and judges had displayed a lawyerly tendency to draw distinctions
too fine and to parse matters too closely, while missing the main point – the
trust of the public at large.
Congress included a subsection that requires recusal when a judge may
have had some involvement during his previous government employment
which relates to the controversy before the court. At 1974 U.S.C.C.A.N. 5355-
56, H.R. Report No. 93-1453, the Report of the House of Representatives on
the proposed amendments states that (b)(3) was added to the ABA canon on
disqualification to solve problems like the one that arose in the case of Laird v.
12
Tatum, 408 U.S. 1 (1972). Laird was one of the most controversial decisions of
the Vietnam era, in which Justice William Rehnquist cast the deciding vote in
a 5-4 decision upholding the validity of a government surveillance program.
Justice Rehnquist wrote a separate decision, 409 U.S. 824 (1972), explaining
why he felt it was appropriate for him to sit on the case even though it involved
the validity of a statute which he had defended before Congress while at the
Department of Justice. Justice Rehnquist asserted a number of arguments
under the old version of § 455, invoking among other things the limited nature
of his involvement while in government service; a judge’s “duty to sit”; and the
subjective discretion vested in each judge to decide matters of recusal.
Although such reasoning may have been permitted under the old statute,
Congress found the result to be unacceptable, and amended the statute
accordingly.
During the hearings on the new disqualification statute, the federal
judiciary expressed the view that legislation was not necessary to effect these
changes. However, Congress determined that its views on judicial impartiality
should be given the force of a federal statute, not merely a rule of court. H.R.
Rep. No. 93-1453 (1974), reprinted in 1974 U.S.C.C.A.N. 6351. The Senate
passed the bill by unanimous consent (119 Cong. Rec. 33029-30 (Oct. 4,
13
1973)), the House amended the bill and passed it by a vote of 317 to 31 (120
Cong. Rec. 36271-72 (Nov. 18, 1974)), and the Senate passed the amended
final bill by unanimous consent (120 Cong. Rec. 36921-22 (Nov. 21, 1974)).
There was broad support for the bill from both political parties. Such
congressional intervention in the affairs of the judiciary has been rare, but in
this instance Congress felt strongly that it needed to supply new rules and a
different perspective for the judiciary to follow, consistent with the principle of
checks and balances among co-ordinate branches of government.
The 1974 amendments changed the rules of law on disqualification and
disclosure in substance and in form. Before the 1974 amendments, “a federal
judge was required to recuse himself when he had a substantial interest in the
proceedings, or when ‘in his opinion’ it was improper for him to hear the
case.” Subsection (a) was drafted [expressly] to replace the subjective standard
of the old disqualification statute with an objective test.” Liljeberg v. Health
Services Acquisition Corp., 486 U.S. 847, 870-71 (1988) (Rehnquist, C.J.,
dissenting). As Justice Rehnquist noted, “The amended statute also had the
effect of removing the so-called ‘duty to sit,’ which had become an accepted
gloss on the existing statute.” Id. at 871. By eliminating the “duty to sit” rule,
14
Congress hoped to “promote public confidence in the impartiality of the
judicial process . . . .” Id. See also H.R. Rep. No.93-1453.
The first sentence of the statute contains a plain mandate from Congress
to the judiciary: “[a]ny justice, judge, or magistrate of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably
be questioned.” 28 U.S.C. § 455(a) as amended (emphasis added). Congress
enacted this general standard “to promote public confidence in the impartiality
of the judicial process by saying, in effect, if there is a reasonable factual basis
for doubting the judge’s impartiality, he should disqualify himself and let
another judge preside over the case.” House Report at 5, reprinted in 1974
U.S.C.C.A.N. at 6354-55. The focus under the statute is on the possibility or
the appearance that the judge might be biased, rather than bias-in-fact.
The modern rule has one overriding objective: preservation of the
public’s confidence in the judiciary, on which the rule of law ultimately
depends. In changing the standards for judicial recusal in 1974, Congress
adopted the viewpoint of a lay citizen observing the courts from the outside,
rather than the viewpoint of a judge within the system. As several cases have
correctly observed, “people who have not served on the bench are often all too
willing to indulge suspicions and doubts concerning the integrity of judges.”
15
Liljeberg, at 864-65. Judges “may regard asserted conflicts to be more
innocuous than an outsider would.” United States v. DeTemple, 162 F.3d 279,
287 (4th Cir. 1998), cert. denied, 526 U.S. 1137 (1999); United States v. Jordan, 49
F.3d 152, 156-57 (5th Cir. 1995) (the average person on the street as “an
observer of our judicial system is less likely to credit judges’ impartiality than
the judiciary”); In re Mason, 916 F.2d 384, 386 (7th Cir. 1990) (lay observer
would be less inclined to presume a judge’s impartiality than other members of
the judiciary); In re Kensington Int’l Ltd., 368 F.3d 289, 303 (3d Cir. 2004)
(reaffirms that the “appearance of impropriety must be viewed from the
perspective of the objective, reasonable layperson”).
Furthermore, under the modern rule, “Whether a judge actually has a
bias, or actually knows of grounds requiring recusal is irrelevant – section
455(a) sets an objective standard that does not require scienter.” Moran v.
Clarke, 296 F.3d 638, 648 (8th Cir. 2002) (en banc) (citing Liljeberg, 486 U.S. at
859-60); Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 162 (3d Cir.1993)
(“For purposes of § 455(a) disqualification, it does not matter whether the
district court judge actually harbors any bias against a party or the party’s
counsel.”).
16
By design, the modern rule lowers the threshold for recusal to encompass
any case in which the public might have questions about the judge’s ability to
be completely impartial. If the public might have a reasonable doubt about the
judge’s ability to be impartial, then recusal is required even if the judge is in
fact completely unbiased. If any of the statutory grounds are present, recusal
or disqualification is required even though the judge is actually capable of
being impartial. Some of the cases have accurately perceived the
Congressional purpose behind the 1974 amendments. As Justice Rehnquist
said in Liljeberg, Congress enacted § 455(b) “to remove any doubt about recusal
in cases where a judge’s interest is too closely connected with the litigation to
allow his participation.” 486 U.S. at 871; see also United States v. Alabama, 828
F.2d 1532, 1540 (11th Cir. 1987) (“The statute also did away with the ‘duty to
sit’ so the benefit of the doubt is now to be resolved in favor of recusal.”).
Among other things, the modern rule reflects a considered policy
judgment that judges and litigants might tend to focus too narrowly on the
perceived effects of recusal on the case at hand, forgetting that the paramount
objective must be to maintain the respect and trust of the citizenry in the
courts. This broader perspective is reflected most strongly in the provisions
which prohibit the waiver of certain conflicts. Even if all the parties and their
17
counsel know all the pertinent facts, and would like to stipulate that the judge
can continue on the case, Congress has forbidden them from doing so.
From a systemic perspective, the judiciary operates more efficiently by
reassigning questionable cases to another judge, rather than expending the
resources of the court and the parties on resolving a tangential dispute. This
perspective can be seen in the first federal statute on recusal, enacted in 1792.
The 1792 statute required district judges to recuse themselves when the judge
“has been of counsel for either party”. In that era federal judges were scattered
across the country, so transferring a case might delay it by months or years.
Nevertheless, Congress decided that the judiciary and the public were better
served by transferring the case to another judge, rather than battling over the
fairness of the first judge.
The concept of impartiality is so essential to justice that Congress wrote
it into the oath of office taken by every member of the judiciary. A judge must
swear to “administer justice without respect to persons, and do equal right to
the poor and to the rich,” and “faithfully and impartially discharge and
perform all the duties incumbent upon [him]. . . .” 28 U.S.C. § 453.
The modern rule requires a judge to recuse himself or herself:
! Whenever the judge’s impartiality might reasonably be questioned.
18
! If the judge has a personal bias or prejudice for or against any
party.
! If the judge has personal knowledge of disputed evidentiary facts
concerning the controversy.
! When in prior government service the judge served as lawyer or
advisor relating to the matters in controversy.
! The list of circumstances enumerated in Rule 21-211 is not
exclusive, because “a judge is disqualified whenever the judge’s impartiality
might reasonably be questioned, regardless of whether any of the specific
provisions of Subparagraphs (A)(1) through (A)(5) apply.” New Mexico
Committee Comment [1]. Recusal cannot always be reduced to a simple set of
rules, and recusal may be required in instances that do not fall neatly into the
specified categories.
In Liljeberg, the United States Supreme Court vacated a trial decision by
a federal judge who sat on the board of Loyola University in New Orleans, an
institution of the Roman Catholic Church. Loyola University would have
been indirectly impacted by the court’s decision, even though the University
and its affiliates were not parties to the action. Even though the judge was
unaware of the University’s indirect economic interest in the litigation, both
19
the Fifth Circuit and the Supreme Court held that the judge should have
recused himself when he learned of the connection.
The judge’s forgetfulness . . . is not the sort of objectively

ascertainable fact that can avoid the appearance of partiality. . . .
Under section 455(a) . . . recusal is required even when a judge
lacks actual knowledge of the facts indicating his interest or bias in
the case if a reasonable person, knowing all the circumstances,
would expect that the judge would have actual knowledge.
Health Serv. Acquisition Corp. v. Liljeberg, 796 F.2d 796, 802 (5th Cir. 1986). The
judge’s failure to disclose and recuse required that the judgment he had
rendered be vacated, post-judgment and post-appeal.
The district judge in Liljeberg was held to have constructive knowledge
sufficient to disqualify him and his rulings, regardless of the current state of his
recollections:
At the very least, a reasonable observer would expect that Judge

Collins would remember that Loyola had had some dealings with
Liljeberg and St. Jude and seek to ascertain the nature of these
dealings. This is not to suggest that Judge Collins was other than
completely candid in denying any recollection of these dealings. It
is merely to say that the failure of a judge to recall or perceive
information which he had been recently exposed to on a number
of occasions would not be expected by the objective observer. The
district court properly found that Judge Collins had constructive
knowledge of Loyola’s interest.
Liljeberg, 796 F.2d at 803.
The Supreme Court severely castigated the trial judge:
20
These facts create precisely the kind of appearance of impropriety

that § 455(a) was intended to prevent. The violation is neither
insubstantial nor excusable. Although Judge Collins did not know
of his fiduciary interest in the litigation, he certainly should have
known. In fact, his failure to stay informed of this fiduciary
interest may well constitute a separate violation of § 455. See §
455(c). Moreover, providing relief in cases such as this will not
produce injustice in other cases; to the contrary, the Court of
Appeals’ willingness to enforce § 455 may prevent a substantive
injustice in some future case by encouraging a judge or litigant to
more carefully examine possible grounds for disqualification and
to promptly disclose them when discovered.
486 U.S. at 867-68. It added, “‘[t]he guiding consideration is that the
administration of justice should reasonably appear to be disinterested as well as
be so in fact.’” Id. at 869-70. The Court also noted and explicitly rejected the
judge’s arguments that the University was not a named party in the case; that it
was a non-profit educational institution that did not benefit the judge
personally; and that the judge was not involved in the particular transactions
related to the litigation. Id. at 867 n.15. The Court also noted that Judge
Collins’ failure to police his recusal status might constitute an independent
violation of subsection (c) of the statute. Id. at 868.
One critical aspect of the modern rule is a judge’s ongoing duty to
volunteer information that may pertain to the issue of recusal. “A judge
should disclose on the record information that the judge believes the parties or
their lawyers might consider relevant to the question of disqualification, even if
21
the judge believes there is no real basis for disqualification.” New Mexico
Committee Comment [8] to Rule 21-211; Official Commentary to Canon
3E(1) of the ABA Model Code of Judicial Conduct, which is identical to
Canon 3C(1) of the Code of Conduct for United States Judges. See also 28
U.S.C. § 455, especially subsection (c); Liljeberg v. Health Services Acquisition
Corp., 486 U.S. 847 (1988).
Every judge has a duty to make full and complete disclosures on these
issues relating to impartiality, and to volunteer information that the parties and
their counsel might consider relevant to recusal, even though the judge feels
that recusal is not necessary. These disclosures must be made, even if it were
to be determined ultimately that recusal is not required. The duties of
disclosure and recusal are related but not identical. Full disclosure is required
so that the parties, their counsel, and the public can judge for themselves
whether recusal is appropriate. It is also required so that there is a full record
for an appellate court to review a judge’s refusal to recuse himself.
There are many reasons, both theoretical and practical, why the duty of
full disclosure is placed upon each individual judge:
Full disclosure is required by the objective standard enacted by Congress
in 1974, when it amended § 455 so that disqualification is no longer governed
22
by the judge’s own subjective opinions. In amending the statute, Congress
recognized that people are not always the best judges of their own biases.
Human beings like to believe in their own fairness, and they tend to
overestimate their own ability to be impartial. Judges share this tendency,
even though they would like to believe that their law school training makes
them immune. See Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich,
Inside the Judicial Mind, 86 Cornell L. Rev. 777 (2001) (study of 167 federal
magistrate judges reveals that they are subject to same errors in thinking as
laymen); Daniel Kahneman, Thinking, Fast and Slow (2011).
Public confidence in the judicial system must be the ultimate deciding
factor in determining whether recusal is required. Thus, the judge’s subjective
faith in his own fairness is no longer the decisive factor.
A judge’s failure to disclose may itself constitute sufficient grounds for
recusal, even though the undisclosed facts were insufficient. Liljeberg; Moran v.
Clarke, 309 F.3d at 517. This may lead to a tremendous waste of resources if
the judge’s rulings are later vacated.
The judge has superior knowledge about his own dealings and
relationships, which may be unknown to the litigants.
23
In some cases, one party may have “inside information” about the judge
which is not available to the other side, so disclosure levels the playing field.
By its very nature, “[a] section 455 inquiry will always be fact-intensive,
making it difficult to glean broad principles of application.” United States v.
Tucker, 82 F.3d 1423, 1429 (8th Cir. 1996). See also Nichols v. Alley, 71 F.3d
347, 352 (10th Cir. 1995) (determination in a recusal case “is extremely fact
driven”).
Before deciding whether to recuse himself, a judge should consider the
reactions and views of the parties and their counsel after they are informed of
all the facts. In some rare instances under § 455(a), the litigants may decide to
waive the grounds for disqualification. Such waiver is void unless it is
knowing and fully informed. See Tramonte v. Chrysler Corp., 136 F.3d 1025 (5th
Cir. 1998) (remanding for full disclosure of the judge’s family members’
potential financial interest in the outcome of the class action).
By volunteering information, no matter how inconsequential it may
seem to him, a judge reinforces the confidence which the litigants and the
public must have in the integrity of the judicial system.
If judges make full and voluntary disclosures, the parties and their
counsel are spared the distasteful and unseemly prospect of having to conduct
24
their own investigation to find out the facts. It is the judge’s duty to volunteer
information, not the parties’ duty to ferret it out. American Textile Manufacturers
Inst. v. The Limited, Inc., 190 F.3d 729, 742 (6th Cir. 1999).
Judges and their families have rights of privacy which should be
protected. Judges can and should protect their private lives – by recusing
themselves from any case in which the judge’s private life might intersect with
the controversy at issue, or influence his ability to judge the case with complete
impartiality. Judges routinely screen cases when they are assigned to them,
and recuse themselves from any case that potentially might intersect with their
private lives. Judges who recuse themselves are not required to give any
reasons. Gerety v. Demers, 1978-NMSC-097, ¶ 11, 92 N.M. 396. As a result, for
every reported case about disqualification, there are hundreds of unreported
cases where judges have recused themselves. In the vast majority of cases,
Rule 21-211 is operating as intended. By freely recusing themselves when
questions might arise in the minds of the litigants or the public, judges
accomplish several objectives at once: they protect themselves and their
families from intrusion into their private lives; they adhere to the letter and the
spirit of the rule; they reinforce public trust in the judiciary, by allowing the
25
case to be heard by a judge whose impartiality is beyond any question; and
they increase judicial efficiency by avoiding tangential controversies.
The modern rule tries to protect litigants and their counsel so that they
will not be so intimidated by judges that they are unwilling to assert their right
to a fair tribunal. As one district judge has humorously but accurately noted,
“The grounds for statutory disqualification of a federal judge have, of course,
changed substantially since I was admitted to the Bar over forty years ago. In
those days lawyers who wanted to try to disqualify a federal judge were, in
some districts, advised to write out their motion to disqualify on the back of
their license to practice law.” School Dist. of Kansas City v. Missouri, 438 F.
Supp. 830, 835 n.2 (W.D. Mo. 1977). Unfortunately, this is not a joke,
because parties do run the risk of judicial ire and retaliation if they question the
judge’s impartiality in any way, even by asking questions. This is why Rule
21-211 requires all judges to make full disclosures on the record without being
asked. To minimize the intimidation factor, Rule 21-211(C) requires the judge
to let the parties and counsel consider recusal “outside the presence of the
judge and court personnel” and “without participation by the judge or court
personnel.”
26
When the public has a reasonable doubt about a particular judge’s ability
to be evenhanded in a particular case, especially a high profile one, the judge is
placed in a “no-win” situation which is quite unfair to him personally. Even if
all of his decisions are completely correct on the law and the facts, his decisions
will be doubted by the public and perhaps vacated by a higher court. The
judge’s decisions will be suspect, even if another judge would have reached the
identical conclusions on the law and the evidence. And there is always a
danger that the judge may try to overcompensate, consciously or
unconsciously, to “bend over backwards” to demonstrate his impartiality.
Pashaian v. Eccelston Properties, Ltd., 88 F.3d 77, 83 (2d Cir. 1996). Even if a
judge makes every conceivable effort to be fair, he has inadvertently placed
himself in an untenable position. The modern rule instructs judges to avoid
such “no-win” situations at all costs.
The modern rule is also rooted in the most basic notions of justice, due
process and equal protection. Every litigant has a right to have his case
decided by a tribunal whose impartiality and integrity is beyond question. If
there is a reasonable doubt that it appears that a judge might not be able to
view all the parties as equals, favoring none, then the case must be heard by
another judge.
27
Just as counsel have duties of candor to the court, the court has duties of
candor to the litigants, counsel, and the public. If the judge does not make
adequate disclosures, rumor and innuendo may fill the vacuum, and those
rumors may be worse than the truth.
Under the modern rule, the correctness of the judge’s rulings is not the
issue; the issue is whether he should have heard the case in the first place. If a
disqualified judge’s rulings were correct, then presumably another judge would
reach the same conclusions independently. It should be noted that in Liljeberg,
the Supreme Court vacated Judge Collins’ trial rulings even thought the Fifth
Circuit had already affirmed those rulings before the recusal issue arose. 796
F.2d at 798.
PART IV
THE RECORD SHOWS THAT JUDGE WECHSLER FAVORED HIS

FORMER CLIENT BY REFUSING TO FOLLOW ESTABLISHED LAW
AND PROCEDURE.
As explained above, Rule 21-211 does not require the acequias to prove
actual bias. The modern rule on disqualification has abandoned that
requirement. All that is required is reasonable doubt about the judge’s ability
to be impartial; or extrajudicial knowledge; or a failure to disclose; or a prior
representation. All of these disqualifying factors are present in this case, now
28
that some of the facts about the judge’s connections to the Navajo Nation have
come to light.
Although it is not necessary to prove actual bias, the record provides
ample evidence of bias and favoritism during these proceedings, when they are
viewed in light of the new information. Judge Wechsler has a bias in favor of
the Navajo Nation, and in one sense he should, because all attorneys have a
duty to favor the interests of their clients. He also committed himself to
advancing the interests of the Navajo people. So he has a bias as a matter of
law, because the Rules of Professional Conduct impose that bias.
Beyond that, the record on appeal shows several instances where the
judge departed from established law and procedure in favor of the Navajo
Nation and against the acequias. Here are some of the more pronounced
examples:
! Judge Wechsler did not comply with the factual and procedural
standards for granting summary judgment to the Navajo Nation. [BIC 3-4];
! Judge Wechsler rejected the beneficial use requirement and the PIA
standard, and substituted the vague “homeland theory” espoused by the
Arizona Supreme Court. By awarding water without proof of beneficial use
and PIA, the lower court violated the Reclamation Act of 1902; Article XVI of
29
the New Mexico Constitution; NMSA 1978, § 72-1-2; Winters v. United States,
207 U.S. 564 (1908); the Colorado Compacts, § 72-15-5 and § 72-15-26; Arizona
v. California, 373 U.S. 545 (1963); State ex rel. Martinez v. Lewis, 1993-NMCA-
063, 116 N.M. 194 (“Mescalero”); State ex rel. Erickson v. McLean, 1957-NMSC-
012, 62 N.M. 264; Mimbres Valley Irrigation Co. v. Salopek, 1977-NMSC-039, 90
N.M. 410; State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M.
375; and the Colorado River Storage Act, Pub. L. No. 84-485, 70 Stat. 105
(Apr. 11, 1956). [BIC POINT 1];
! Section 13(c) of the 1962 NIIP Act explicitly states that it does not
create any water rights, but Judge Wechsler ruled that it did. [BIC POINT 5];
! Judge Wechsler declined to comply with State ex rel. Clark v. Johnson
and Pueblo of Santa Ana. [BIC POINT 6];
! The judge knowingly allowed service of process which did not meet
the minimum due process requirements imposed by Mullane v. Central Hanover
Bank; Macaron v. Associates Capital; and Patrick v. Rice. [BIC POINT 11];
! To award water to his former client, Judge Wechsler abandoned the
preponderance standard and substituted “a reasonable basis”, which is not a
standard of proof for a trial court. [BIC POINT 26];
30
! Judge Wechsler excluded the 2010 census data from the United States
and the Navajo Nation, which shows that the population on the reservation is
shrinking, not growing. [BIC POINT 16];
! Judge Wechsler prevented more than 9,000 water owners (parciantes)
from having an attorney to contest the Navajo water claim. [BIC POINT 20];
! The lower court set special rules to favor the three governments before
the defendants were even joined as parties, thereby denying all defendants their
due process right to be heard on procedural issues. [BIC POINT 21]; and
! Judge Wechsler did not disclose his ex parte contacts as required
by Rule 21-209. [BIC POINT 24] See Kensington, 368 F.3d at 309-12 (ex parte
communications contribute to taint).
CONCLUSION
Under these surprising circumstances, given the facts which have now
emerged – facts which the judge and the Navajo Nation did not disclose – the
public might reasonably wonder whether the judge fixed this case for his
former client. Because there is a reasonable question about the judge’s ability
to be completely impartial in this litigation, the standards in Rule 21-211 have
been met, and therefore recusal is required.
31

Victor R. Marshall
Attorneys for the San Juan Acequias
12509 Oakland NE
505-332-9400

copy of the foregoing was efiled and served
via Odyssey File and Serve to counsel
of record on February 26, 2018.

Victor R. Marshall
32
' ·I"
A HISTORY OF THE NAVAJOS

rne
Peter Iverson
Featuring photographs by Monty Roessel
University ()f New Mexico Press

Albuquerque
assume important positions. Navajo studies were featured at the heart of
the curriculum, with Kenneth Begay (silversmithing), Mike Mitchell (his-
tory and culture), William Morgan (language), Mabel Myers (weaving),
Ruth Roessel (director, history and culture), and Atah Chee Yellowhair
(basketry) among the instructors. Teddy Draper, Mike Etsitty, Nathan
Silversmith, and Erwin Wayne taught in adult basic education. Other
initial Navajo faculty members included Elouise Jackson (English), Grace
McNeley (English), Priscilla Mowrer (sociology), Paul Platero (sciences),
and Rudy Sells (mathematics). Key Navajo staff members included
Tommy Begay (comptroller), Margaret Etsitty (counselor), Dean Jackson
(federal programs), Jack Jackson (dean of students and basketball coach),
and Agatha Yazzie (registrar).
The college achieved noteworthy successes on several fronts, but its
nonacademic environment limited its ability to attract and keep students.
Those who lived on campus were sentenced to reside in Dormitory Nine,
with no rugs on the floor, no carpeting in the hallways, harsh overhead
lighting, and paper-thin walls. The high school furnished the cook, the
food, and high school students whose presence extended the lines in
the cafeteria. The cook obviously regarded pepper as a dangerous spice
and his concoctions lacked imagination, variety, or taste.,Students com-
plained constantly about the food. One expressed his unhappiness in the
student newspaper: "My socks have absorbed so much starch they walk
by themselves!" Those enrolled at the college played basketball in a high
school gym, saw movies in a high school auditorium, checked books out
of a high school library, and attended class in high school classrooms. It
is not surprising that they wondered about whether they were attending
"a real college." Many Farms' centrally isolated location did not aid those
who needed a change of scenery. 16 In sum, by the early 1970S, the future
well-being of the Navajos' own college remained very much in doubt,
despite the need for a Dine institution of higher education.
IMPACT OF THE OFFICE OF NAVAJO ECONOMIC

OPPORTUNITY AND THE DNA LEGAL SERVICES PROGRAM
The ONEO was not a Navajo idea. The office emerged because of money
available through the federal government's "War on Poverty" during the
196os. The Navajo Nation brushed aside the BIA's request to administer
a local program sponsored through the Office of Economic Opportunity
(OEO) and decided to run the program itself. An initial grant of $920,000
from the OEO in January 1965 launched ONEO. By May 1965, Peter
MacDonald had become executive director of ONEO. He remained at the
helm until he resigned to run for chairman. 1 7
In one way or another, different ONEO programs soon affected the
lives of most Dine. The Legal Services, Home Improvement Training, the
Navajo Culture Center, the Neighborhood Youth Corps, Local Community
236 Chapter 7
Development, Alcoholism, Head Start, Migrant and Agricultural Place-
ment, Recreation and Physical Fitness, and Operation Medicare Alert
programs soon engaged many Dine. By 1967, 23,382 people had been
served by the ONEQ.l8
The federal government's generous funding of the ONEO made pos,.
sible a wide-ranging program. The Navajos once again found a way to
take an idea from the outside and make it work ,within their society.
Nearly all of its top administrators were members of the Navajo "Nation
and the benefits of the program resonated throughout the reservation,
with residents of more distant communities. seeing immediate benefits
through new employment or help for young children.
The Local Community Development (LCD) and Child Development
(CD) programs exemplified the ONEO' s value. LCD projects often resulted
from ONEO partnering with other government agencies for funding and
assistance. This program enabled residents of Aneth, Utah, to conStruct
a much-needed medical clinic, members of the Teec Nos Pos chapter to
improve a local road and expedite the delivery of water for irrigation, Red
Mesa residents to construct a utility building, and Nenanez;;td chapter
members to build a hay shed. By early 1970, the CD program furnished
preschool activities for mor~ than two thousand children. Through this
initiative, many children gained medical and dental care to which they
otherwise might not have had access. Hundreds of children received
physical examinations, skin tests, immunizations, dental treatments, heaf-
ing screening, and other tests. These initiatives gave the ONEO a kind
of concrete reality that Window Rock- or Washington-based innovations
often lacked. The ONEO combined adequate funding, local involvement
and support, and visible and viable programs that mattered.l9
Little controversy attended most components ofONEO, with one nota-
ble exception: Dine Bee'iina Nahiilnah Bee Agha'diit'aahii (or "Attorneys
Who Contribute to the Economic Revitalization of ·the People") Legal
Services, soon shorthanded to DNA Legal Services, attracted opposition
and animosity from the outset, even as it also demonstrated its value to
thousands of Dine. Debate over the program, soon to split off from the
ON?O, began in the waning days of 1966 when DNA's board decided to
hire Theodore ("Ted") Mitchell as its executiv~ director. A 1964 graduate
of Harvard law school, Mitchell had grown up in Phoenix, and had also
attended Phoenix College and Brigham Young University. He had worked
as an attorney for the Navajo Tribal Legal Aid Service from January 1965
to March 1966. At the time of his appointment to head DNA, he was work-:-
ing as legal services director for an OEO regional office in Austin, Texas. 20
Not all of the Dine welcomed Mitchell's return. The brash, outspoken
young lawyer had displeased some powerful Navajo politicians, includ-
ing Sam Billison and Annie Wauneka, because of his disagreement with
Littell. They protested his· appointment. Their opposition also reflected
their antagonism toward Nakai. Mitchell expressed pleasure at his
238 Chapter 7
appointment and declared, "[T]he prime objective of the program will

be to provide justice for the Navajo who cannot afford to hire a private
attorney to advise and represent him./21
him." 21
DNA hired attorneys from leading law schools and set up offices in
Chinle, Crownpoint, Shiprock; Tuba City, and Window Rock Thousands
of Dine flocked to its offices to seek assistance on 'a variety of matters,
including sales contracts, grazing rights, misdemeanors, pawn, and state
and local welfare. This list indicated that DNA had to deal wi.th with key
institutions and influences in the Navajo area. By defending individual
Navajo rights, DNA began to ta~ke on vested interests and long-standing
concerns, as the following example demonstrates.
A Navajo man travels from Newcomb to Farmington in order to buy a
used pickup truck He visits Farmington Vehicles .and a fast-hilking
fast-hilling sales-
man sells him the least desirable vehicle on the lot. The customer wonders
old-lookingtruck can have such limited mileage on it/but
how such an old-Iookingtruck it,but he
speaks only limited English and does not feel comfortable asking about it.
The salesman pressures him into signing the papers, including one that
calls for 25 percent interest. The new owner starts toward Newcomb. He
doesn't like how the truck sounds, but drives west out of Farmington
hoping for the best. Then he turns off the main highway and heads down
toward the river in order to pay a brief visit to the Hatch Brothers trad-
ing post in Fruitland. As he begins to drive away from Hatch's, the truck
begins to go into some kind of nervous shock It shakes, shudders, and
dies. He is furious about being sold this lemon. What can he do? He calms
down,: walks back to the trading post and asks Stewart Hatch to call the
Shiprock. Eventually, he gets his money back and some
DNA office in Shiprock
additional compensation, given how he has been treated. He becomes a
booster of DNA legal services. Farmington Vehicles does not.
This fictional but representative example helps to illustrate why a vari-
resisted this challenge to their customary way of doing
ety of businesses resistedthls
business and why DNA became so popular. The Tribal Council's general
counsel, Harold Mott, concluded that the DNA attorneys made his life
more complicated and difficult. He viewed the young lawyers with dis-
dain and they tended to return the favor. One named his two dogs after the
ge~eral counsel and his wife, christening them Harold and Louise Mutt.
ANNIEWAUNEKA RESPONDS TO TED MITCHELL'S LAUGH

In Gallup, DNA attorneys tackled conditions in the local jail, abuses of
the pawn system, and poor working conditions. Mitchell called jail condi-
tions "so il,1tolerable
i:rtolerable that even for a man to spend one day there is inde-
fensible." The Gallup city manager called DNA's critique "a last dying
gasp at obtaining a little publicity." Gallup residents complained about
DNA's criticism hurting the image of the community. A suit against con-
following headline in the Gallup
temporary pawn practices received the follOWing
"We Stand Together";

Together": 1962-1982 239
newspaper: "DNA Complaint May End Indians' Pawn Privileges." The
owner of Virgie's Cafe, Virgie Chavez, responded unhappily to a DNA
attorney's complaint concerning her payment of low wages and Jack lack of
overtime pay. She said such criticism demonstrated"this agency's gross
incompetence and disregard for ethics" and labeled DNA lawyers "long-
haired, irresponsible and ill-manner[ed] clerks'~ and an "inferior group of
rabble rousers" with a "pernicious empire."
empire."22
22
Trading post operators on the Navajo Nation echoed these emotions

about the intent and impact of the DNA program._ Brad Blair, a member
of a well-known trader family, wrote to Commissioner of Indian Affairs
Louis Bruce to register his objections. He likened DNA to John Collier in
being "racist and totalitarian in nature." Blair urged the BIA to "exercise
its proper function to protect the individual rights and property rights of
all citizens of Indian reservations." He told Bruce to "bea:r: in mind that
.historical evidence shows that the most notorious of rights [abusers] has
always been government-for example: Hitler's Germany-and in case
of the Navajos-John Collier's livestock reduction program during the
Roosevelt administration."23
administration." 2 3
Nor did DNA in general and Mitchell in particular escape continuing
criticism from some members of the Navajo Nation. The most publicized
instance involved Annie Wauneka. In August 1968, during a meeting of the
Tribal Council's Advisory Committee, Duard Barnes, the acting associate
solicitor on Indian affairs, was being questioned about whether the Navajo ..-...
Nation could exclude people from the reservation under the terms of the
1968 Civil Rights Act. Responding to a question from ~ames,~arnes, Wauneka
said, "I do not have anyone particular in mind." Mitchell laughed out loud
because "everyone in the room knew she was talking about me."
A furious Wauneka confronted Mitchell on the following day. She
asked, "Ted, are you ready to laugh some more?" Mitchell responded,
"No more, Mrs. Wauneka. I apologize." Wauneka said, "I don't need your
apologies," and began to hit Mitchell on the head. Wauneka's biographer,
Carolyn Niethammer,ebserves,
Niethammer, ebserves, "The pummeling was not as spontane-
ous as it might have seemed. Two decades later Annie would confess to
. a newspaper reporter that she had wrapped her hand around a penknife
before.llitting Mitchell. "'I told myself my hands were too soft because I
.hadi:i:tl;laridled acalf in years,' she said."24
.hadiitllandled
..... ,the
,J'he confrontation had significant consequences. The Advisory
Co:rp.triittee
Co:rp.tri.ittee supported Wauneka by voting to exclude Mitchell from the
.· reservilti.()n.
reservati.on. Mitchell drove the short distance to exile in Gallup. Mitchell
remained nominally in charge of DNA,but his ability to provide effective
leadership had been permanently compromised. Even though he eventu-
ally emerged triumphant in the suit filed against his exclusion, Dodge v.
Nakai (1968), he eould not continue to serve as head of DNA. Mitchell
resigned his position in February 1970, and moved to Micronesia to head
its legal services program. 2255
240 Chapter 7
Peterson zah, head of DNA Legal Services.

Peterson zah Collection, Labriola Center,
Hayden Ubrary, Arizona State University, Tempe.
'We Stand Together": 1962-1982 241

Mitchell's departure also expedited the assumption of leadership
positions in DNA by Navajos. Leo Haven and Peterson Zah became the
new leaders for the program. Although DNA continued to receive sharp
criticism from the same quarters,
quarters,it
it survived various efforts to halt or
severely curtail its funding. MacDonald's election in 1970 signaled its
survival. The new chairman eventually rued his support for an organiza-
survivaL
tion that provided the same kind of political base for Peterson Zah that
the ONEO had once offered him.
PEABODY COAL AND BLACK MESA

The Nakai administration embraced industrial development as a centrq.l
element in its overall approach to economic growth. Nakai believed that 1.I.
the Navajo Nation had to demonstrate its support for industrialization,
and the Tribal Council backed up his wish by allocating $1 million to
help lure industry to the reservation. But as happened again and again in
Indian country during this period, the industries drawn to reservations
often did not prove themselves worthy of the money and trust invested
in them. The Armex Corporation and the Westward Coach Corporation
operations quickly collansed. Fairchild Camera and General Dynamics
Corporation also jumped to take advantage of Navajo and federal invest-
ment and the presence of cheap labor. They both lasted for less than a
decade, employing far fewer people at far lower wages than their sup-
porters initially had envisioned. 26 .
In common with the governors and legislators of Western states,
Navajo chairmen and Tribal Council delegate~ hoped that development
of natural resources would bolster the overall economy. Oil and gas, ura-
nium, and coal thus figured prominently in the Nakai administration's
plans. Oil and gas revenues continued to playplayaa major role in the work-
ings of the Navajo economy. In the year after Nakai's election, in fact, oil
and gas revenues accounted for $31 million, the second highest total ever
obtained. From that pinnacle, oil and gas revenues had nowhere to go but
down, to slightly more than $18 million in 1965, $13 million
millionin
in 1966, and
from 1967 to 1970, an average
average of $8 million annually. Both oil and natu-
ralgas
ral gas production declined, with corresponding declines in royalties.
Navajo uranium miners persisted in their deadly work, but the Navajo
Nation, again, did not realize an appropriate level of6f financial return for
this labor. The Dine,
Dine,like
like other Indian nations, kept paying the price for
long-term leases, which had locked in low royalties. 2277
. Coal also constituted an environmental hazard, but the members of the
Tribal Council were often not fully informed about the kind of ecological
price that would be paid for coal mining. Moreover,.
Moreover/industry
industry consultants
told delegates and Nakai himself that with nuclear power just around the
corner, coal might soon become obsolete. Federal representatives worked
closely with industry· executives to encourage Navajo participation in
242 Chapter 7
MACDONALD'S FIRST INAUGURAL ADDRESS
Peter MacDonald's inaugural address in January 1971 offered a clear call
to action. The new chairman
chainnan demanded that bold, new steps to be taken.
MacDonald set forth three primary goals for his administration: "First,
what is rightfully ours, we must protect; what is rightfully due us we must
claim. Second, what we depend on from others, we must replace with the
labor of our own hands and the skills of our own people. Third, what we do
not have, we must bring into being. We must create for ourselves."
The speech included a stirring appeal for self-determination as well as
promisednQt
a stinging attack of his predecessor's record. MacDonald promised not
to "barter away the Navajo birthright for quick profit that will cheat our
children and their children after them." He specifically pledged to work'
toward realization of the irrigation project from San Juan River water that
had long been promised to the Navajos. The new chairman also insisted
the Dine must no longer "depend on others to run our schools, build our
roads, administer our health programs, construct our houses, manage our
industries, sell us cars, cash our checks and operate our trading posts."
He called upon Navajos to discard "the bonds of forced dependency."
He asserted, "We must d~ it better. We must do it in our own way. And
we must do it now." MacDonald observed that the Dine had land, labor,
and some sources of capital; what they needed to do was to "move f:.;:.om
ft-om
a wage and welfare economy to an ownership economy." In perhaps the
most applauded and quoted line from his address, he stated, "Every time
someone says how good we Navajos are wit~ our hands, I want to ask:
Why not give us a chance to show what we can do with our minds?'" 4422
MACDONALD AS CHAIRMAN (1971-1982)

"He is the best damn Indian politician I have ever seen," said a promi-
nent Native scholar at the conclusion of MacDonald's very successful
first term.43 The chairman knew how to reach people. He seemed to be
able to speak to all age groups. Most elders appreciated his reaffirmation
of tradition. Adults admired his outspoken belief in what the Navajo
Nation could become. The young valued his support of education and
his energy. MacDonald spoke to Navajo veterans as one who had vol-
unteered during World War II. He reminded those who owned sheep
that he had grown up herding sheep. He addressed a collegiate audience
as one who held a degree in engineering. MacDonald articulated com-
mon grievances and concerns about economic development, racism, and
ongoing, unresolved issues, such as the land dispute with the Hopis.
Hopis.He
He
pushed the Dine electorate to believe in themselves a:nd
and in the capacity of
the Navajo Nation to reach new heights.
If politicians might be divided up between those who played slow
pitch .softball and those who played real baseball, MacDonald definitely
248 Chapter 7
Such a strategy helped elect George Bush, but it created a rather major
problem for him once he was elected. Most African Americans had been
sufficiently antagonized by this tactic that they were extremely reluctant
to work with the president.
MacDonald's reliance on "us versus them" ultimately proved similarly
divisive. He used it masterfully in gaining election in 1974, 1978, and again
in 1986. But its employment made it all the more difficult to forge some
kind of agreement with the Hopis, for example, or to construct some kind
of compromise or alliance with any party who had just been pilloried."
This strategy galvanized the Navajo into initial action. It took advantage
of long-standing and perfectly understandable animosity toward the BIA,, BlA,
the IHS, state and county officials, corporate representatives,
representatives,and
and other
entities to promote the general notion of Navajo self-determination. In
MacDonald's first administration, it worked splendidly to delineate prob-
lems and to express the need for Navajos to be in charge.
The problems came later on, after criticism and after the assumption
of responsibility. It was one thing to argue for control over schools, but
quite another to forge consensus over curriculum once control had been
achieved. It was one thing to go after Peabody Coal, but quite another to
find alternative bases for,economic development. And it was one thing
to criticize one's opponents in an election, but quite another to earn their
cooperation and contributions when the votes had been counted.
As time went on, MacDonald not only did not let go of "us ve;~us
them/' he added "me and us versus them" to his political repertoire. That
is to say he tended to portray criticism of his ownI\
actions or inactions as
criticism against the Navajos. This variant on another time-honored tactk
usually labeled "divide and rule" or "divide and conquer/
conquer/" exacerbated
already existing internal divisions among the Dine. Almost any question-
ing of MacDonald came to be cast in an anti-Navajo guise. It tended not to
allow for any shade of gray in political discussion. Things were all black or
all white. One was either with MacDonald or entirely against him.
Finally, there was the matter of personal integrity and the possibility
of corruption. Given MacDonald's eventual political fate, the early warn-
ing signs about financial irregularities appear all the more troubling.
Journalists who follow politics are fond of remarking about any long-
term rumor concerning a politician that where there is smoke there even-
tually is found to be fire. In MacDonald's case, a four-alarm fire would
not be reported until the late 198os,
1980s, during what turned out to be his
final term as the elected leader of the Dine. But signs of smoke had been
detected a long time before that terrible conflagration.
GENERAL COUNSEL AND DNA LEGAL SERVICES

The choice of the Phoenix law firm of Brown, Vlassis, and Bain as the new
general counsel constituted one of the important early decisions of the
250 Chapter?
t
new MacDonald administration. A partner in the firm, George Vlassis,

became the primary representative of the firm to serve MacDonald.
Lawrence Ruzow, a young Harvard law school graduate who had previ-
ously worked for Navajo Community College, assisted Vlassis. Vlassis
and Ruzow played a central role in MacDonald's life. They helped draft
the many speeches the chairman was called on to give and advised him
on a variety of matters, including economic development. Eventually
Vlassis split off from the firm in Phoenix to serve as general counsel. By
1980, his general contract had reached $552,000.
As Harold Mott had discovered, the proposals for economic develop-
ment did not always come from the most reliable of companies. Ruzow
bluntly asserted, "There ts flake proposal after flake proposal. There aren't
many good reasons for a company to come, and most outfits are not
resource-oriented but rip-off inclined."·Vlassis and Ruzow struggled with
the same dilemmas that had confronted Mott. Any time they sided with
industrial development they could count on harsh criticism from a variety
of quarters, including the DNA attorneys. Ruzow asserted that it was easy
for those employed through DNA to express such opposition because "they
didn't have to work for a living, that is to say, produce income." Vlassis
and Ruzow prided themselves in being "pragmatists," working for "incre-
mental progress," in contrast to "reformers who want to make speeches
and write for the New Republic," but "who are not interested in following
things through." Ruzow, however, later paFted company with Vlassis and
became openly critical of his former colleague, labeling him in 1981 as "a
banking lawyer from New York" who had failed "to get high quality law
firms for water rights issues, mineral lease negotiations and things like that.
You can never undo all the harm that's been done up till now."45
The DNA Legal Services program survived a variety of challenges
to its continuing existence and made its presence felt throughout Dine
Bikeyah. It mounted a full-scale assault against the trading post opera-
. tors. This crusade helped prompt significant changes in the ways in
which traders did business. DNA's critics charged the program with
delibe;ratelyrunning many traders out of business. Through its newslet-
ter and by following through on the many complaints they continued to
receive about consumer issues, DNA attorneys actively sought to change
the established order. For example, in Pinon, Robert Hilgendorf and
John Silko not only filed a class-action suit .against the Pinon Trading
Post but also helped advise the founders of a competing concern, the
Dine-Bi-Naa-Yei Cooperative of Pinon.
Some of the victories won by DNA had national consequences, includ-
ing McClanahan v. Arizona State Tax Commission (1973). This case started
in 1968, when Rosalind McClanahan, an employee of the Great Western
Bank in Window Rock, challenged the right of the bank to withhold
Arizona income tax from her pay. She asked for a refund, arguing the
.state did not have the right to tax her. After the bank denied her request,
"We Stand Together": 1962-1982 251

she went to court. She lost three times in a row: in the local Arizona
Superior Court, the Arizona Court of Appeals, and the Arizona Supreme
Court. The federal government and the Navajo Nation both supported her
appeal to the Supreme Court and the Court decided to hear the case and
ultimately ruled in her favor on March 27, 1973· The decision meant that
she, and other Indians, did not have to pay state taxes on income earned
within the boundaries of reservations. In a broader sense, the Court's
unanimous decision declared that Arizona had no jurisdiction· over the
Navajo reservation except where permitted by Congress. The deci~ion
represented an important reaffirmation of Navajo sovereignty, arguably
the most significant such statement since Williams v. Lee. DNA attorney
James Wechsler concluded, 11If the decision had gone the other way,
Indian independence from state control would have been threatened."46
In another significant case, DNA attorneys assisted seventeen Navajos
to file suit against a proposed lease between the Navajo Nation and
Exxon that the Tribal Council had approved in January 1974. The. suit
specifically cited concerns over the impact that uranium mining· would
have on the water table, grazing land, and health. Although the suit ulti-
mately proved unsuccessful, it remained important for the issues it raised
and the degree to w~ich it publicized to many Navajos the inherent
dangers in uranium mining. The resulting outcry by many Navajos and
subsequent suits by DNA attorneys and other parties sharply CUJ:tailed
new uranium mining on Navajo lands.47
DNA's significance ultimately.could not be measured solely in terms
of resolving consumer complaints or even in terms of its defense of
Navajo sovereignty. The legal services program also mattered because,
like the ONEO, it operated at the grassroots level and it achieved tangible
results. These results boosted the political career of Peterson Zah. They
also encouraged countless other Dine to go to law school, to run for the
school board, and generally to stand up for their rights. The newsletter
masthead reminded its readers of DNA's core: "Community Education,
Preventive Law, Legal Services." DNA served as an advocate for indi-
vidual Navajos and helped inspire Navajos to be their own advocates.
MACDONALD ATTEMPTS TO CONTROL THE JUDICIARY

At the start of the MacDonald administration the Navajo judicial system
mirrored impressive stability. Chief justice Murray Kirk and justices
Tom Becenti, Chester Hubbard, William Leupp, William Dean Wilson,
and Chester Yellowhair had all been in their positions for at least ten
years. The presence of DNA as well as a growing population prompted
additions to the system. Prosecutors representing the Navajo Nation and
court advocates representing individual Navajos were new components.
The willingness and ability of the Dine to administer. their own judicial
system made one of the strongest and most effective arguments the
252 Chapter 7
TRIBAL ENTERPRISES
The continuing success of the Navajo Forest Products Industry encour-
aged the Dine to establish or expand other tribal enterprises during
the MacDonald years. The NFPI remained profitable and a vital source
for employment. In 1977, for example, it employed over six hundred
Navajos. However, the record of other enterprises was decidedly mixed.
Most disappointing was the failure of the Navajo Agricultural Products
Industries (NAPI) to become a viable operation. The Navajo Nation kept
pouring money into this enterprise designed to develop irrigated farmland
in conjunction with the irrigation project along the San Juan River. The.
Navajo Indian Irrigation Project (NIIP) had not been a very high priority
for Raymond Nakai, who laughed scornfully about it. He told Shiprock
Council delegate Carl Todacheene that such an undertaking was unimpor-
tant, except for Navajos who "only knew the tail of the sheep." MacDonald
thought that the NIIP was more important, but other issues more fully
engaged his attention. Mismanagement, administrative turnover, and
the lack of progress on the irrigation system itself plagued the NAPI. The
Navajo Tribal Utility .Authority looked better on paper than in practice.
It became a revenue produc~tr for the Navajo Nation but did not really
advance the cause of self-sufficiency because it remained dependent on
outside corporate interests to generate and to sell back electrical power.74 os
In an effort to provide more adequate housing, the Navajo Nation
expanded the powers and responsibilities of the Navajo Housing
Authority (NHA) in 1972. Now known as the Navajo Housing and
Development Enterprise, it was charged with creating and building more
housing for the Dine and to make a profit while doing so. This initiative
never succeeded and the NHA resumed its old name, with its primary
responsibility resting with maintenance and management of existing
properties. A scandal within NHA midway through MacDonald's sec-
ond term ended any opportunity for revitalization. NHA director Pat
Chee Miller pled guilty in March 1977 of attempting to defraud the gov-
ernment. Millions of dollars were involved in Miller's plan to use tribal
money for personal investment purposes.75
A more positive story could be told about the Navajo Arts and Crafts
Enterprise (NACE), renamed in 1972 from the Navajo Arts and Craft
Guild. Lenora Begay Trahant concludes that the change in name involved
"a fundamental change in the structure and nature of the crafts opera-
tion. Whereas the guild had been a tribal department that was confined
by many tribal regulations, the enterprise could function more indepen-
dently-with no direct involvement by tribal politicians." Politicians
could influence the enterprise, nevertheless, and in 1972, MacDonald
"conceived the idea for the enterprise to mass-produce Navajo jewelry."
The enterprise hired one hundred silversmiths and waited for the current
craze over Indian jewelry to bring in unprecedented sales.
264 Chapter 7
their eyes and imagined themselves at the free~throw line in a tie game
with one second to go. They would dribble the ball once or twice, stop,
take a deep breath, and aim just over the front rim. In their imagination,
at least, the ball always went in and their team always won the game.
Urbanization contributed to the growth of basketball's popularity. Boys
and girls were more likely to grow up in town, with easier access to a court,
instruction; and teams. By the end of the 19708,
19705, they were likely to have
t<;~ a television and watch the great college and pro players. When
access t<;l
they reached high school, they looked forward to the possibility of their
team competing in the state tournament. Since the schools were divided
into different classifications depending on enrollment, even players on
small school teams could dream of going to state. Like their counterparts
in rodeo, they loved seeing their name in the paper, and relished defeating
teams. from other towns and other tribes. And like rodeo, it all started early.
teams·
The March 23, 1972, issue of the Navajo Times, for example, featured a pho~
tograph of the Crownpoint Bearcats, participants in the second annual eas~
em Navajo peewee basketball league tournament. Jacob Willie, Peterson
withatro~
Billie1 Larry Davis, and Leonard Yazzie posed witha
Francisco, Amos Billie, tro~
phyalmost
phy almost as tall as they. Basketball helped keep more than a few Navajo
children in school during this era. A young man or woman might not like
everything about Fort Wingate or Phoenix Indian School, but might stay
enrolled in order to become a Bear or a Bearette, a Brave or a Bravette. 88
Bravette;88
ZAH DEFEATS MACDONALD IN 1982

Peterson Zah opposed Peter MacDonald in the 1982 election for chairman.
Mountain,· Arizona, Zah attended Phoenix'
Born in 1937 in Low Mountain" Phoenix. Indian
School, where he learned carpentry skills and played basketball. Teachers
and counselors tried ·to discourage him from going to college, but.Zah
gained an athletic. scholarship at Phoenix College and earned an associ-
ate of arts degree. He then transferred to Arizona State University and
received a degree in education in 1963. Zah invited his teachers and coun-
selors at Phoenix Indian School to his graduation from the university, but
.none came. He trained VISTA volunteers before helping to start the DNA
Legal Services. In 1975, the home he had built in Window Rock burned
down in a blaze that appeared to be caused by arson. Zah and his family
escaped just before the roof collapsed. He tHen rebuilt the house.8899
Zah' s candidacy in some ways resembled the part that MacDonald had
Zah's
played in .1970. Through his direction of DNA Legal Services, Zah had
become as well known as MacDonald had been as director of the ONEO.
MacDonald carried the baggage of twelve years in office, whereas in
beenthenew
1970, he had been the new man. Zahwas articulate, tough, and blessed
with a good sense of humor. Like MacDonald, he was a college gradu~
ate. He had grown up in the area fought over by the Navajos and Hopis
. and that background increased his interest in resolving the conflict. Zah's
,and
'We Stand Together";

Together": 1962-1982 271
29. Eugene Gade, "Environmental and Economic Issue: The Strip Mining of Black Mesa.
and the Coal Bunting Power Plants of the Southwest" (Many Farms High School,
Many Farms, Ariz., 1971, mimeograph).
30. Dine Baa-Hani (Crownpoint, N.Mex., Eastern Navajo Agency), October 1970, PIPC. PIPe.
31. Gade, "Environmental and Economic Issue."
32. Boyden died in 19S0, 1980, long before his role as a double agent was revealed. Charles
Wilkinson, Fire on the Plateau: Conflict and Endurance in the American Southwest
(Washington, D.C.:
D.e.: Island Books, 1999), 298-304.
1999),298-304.
33. Navajo Times, 26 February 1970.
33·
34· Raymond Nakai, speech delivered at the opening of the centennial year, Window
34.
lOS), and preface to Martin A. Link, ed., Navajo: A Century of Progress,
Rock, Ariz. (p. 108),
1868-1968 (Window Rock, Ariz.: Navajo Tribe, 1965). 1968).
35· Navajo Nation, Navajo Tribal Code (Orford, N.H.: Equity, 1969), 17-8.
35.
36. Charlotte Raub," A Time to Celebrate and Remember: November is National Native
Raub, "A
American Month," lnscom
Inscom Journal 21, no. 4 (
Journal21, 1 9 9 S ) . ''
(1998). ,'
37. Navajo Times, 26 February 1970.
37·
38. These biographical details are drawn from various issues of the Navajo Times as well
as materials provided by Chairman MacDonald's office during the 19705.
39: Navajo Times, 28 July 1966.
40. Navajo Times, 23 June 1966.
41. Gallup Independent, 25 August 1970; Navajo Times, 27 August 1970; Gallup Independent
and Navajo Times, September-November 1970.
4 2 . Navajo Times, 7 January 1971.
42. 1971-
43· Anonymous scholar's comment to Peter Iverson during the late 19705.
43.
44.
44· Peter MacDonald, ''Preconditions for Growth" (address given at "The Rise of the
Southwest: Promises and PrcJblems" conference, Phoenix, Arizona, 21 April April1977),
1977),
PIPC.
PIPe.
45· Lawrence Ruzow, tape-recorded commentary prepared at Peter Iverson's request,
45.
November 1974; Jeff Gillenkirk and Mark Dowie, "The Great Indian Power Grab," ...
Mother Jones (January. 1982): 24-26.
46. DNA Newsletter (Window Rock, Ariz.), 30 August 1973; James Wechsler, interview by
Peter Iverson, Window Rock, Ariz., May 1973. 1973·
47· Navajo Times, 23 December 1976, 30 December 1976, 6 January 1977, 20 January 1977,
significant victories included Goodluck v. Apache County 417 F.
4 January 1979· Other Significant
Supp. 13 (D. Ariz. 1975) (gaining the right to vote in county elections and being eli-
gible to run for positions in county government) and Natonabah v. Board of Education
of Gallup-McKinley School District 355 F. Supp. 716 (DN.M.
(D.N.M. 1973) and Bigman v. Utah
Navajo Development Council Inc. C77-oo31
C77-Q031 (Utah) (forcing states and counties to build
public school facilities on Navajo Nation land so that Dine children did not have to
make round-trip journeys of up to 150 miles to attend off-reservation public schools).
48. Navajo Times, 26 January 1978; 2 February 1978; 9 February 1975; 1978; 16 February 1978;
1978; 20 April
23 February 1978; 23 March 1975; April1978;
1978; 4 May 1978; 1 June 1978; 8 June 1978;
Mark N. Trahant, "MacDonald Has Long History of Legal Woes," Navajo Nation Today
Ju!y-6 August 1991; Gillenkirk and Dowie, "Power Grab," 46.
(Window Rock, Ariz.), 31 July-6 46.
."· 49,.Gillenkirk
49, .Gillenkirk and Dowie, "Power Grab," 47 47·.
·:5o. : Navajo Nation, Navajo Tribal Code, 24.1-24.2.
. :50. :Navajo
·'51.
'51 ..·Navajo
Navajo Division of Education, "Strengthening Navajo Education''
Education" (Window Rock,
Ariz., 1973); Peter MacDonald, "Education for Survival" (address given at the state
.convention of Delta Kappa Gamma International, Clarksville; Ind., 23 April April1977),
1977),
PIPC; Roessel, Navajo Education, 291.
52. Roessel, Navajo Education, 292-308
292-308...·
Office of Research, Navajo Community College, "High Schools' Views of NCe NCC and
Its Recruitment Program: Report of a Survey" (Tsaile, Ariz.: Navajo Community
College, October 1972).
54· Yazzie, Navajo History; Roessel and Johnson, Navajo Stories of the Long Walk Period;
54.
Roessel and Johnson, Navajo Livestock Reduction; Broderick H. Johnson, ed., Stories of
Traditional Navajo Life and Culture (Tsaile, Ariz.: Navajo Community College Press,
1977).
1977)·
358 Notes to Pages 243-56

ACJN-119-'68
RESOLUTION OF THE ADVISORY COMMITTEE

OF THE NAVAJO TRIBAL COUNCIL
Demanding the Removal of Theodore R. Mitchell as Director

or DNA, Inc., and Harlan Crossman as Attorney for DNA, Inc.
WHEREAS:
1. The Advisory Committee of the Navajo Tribal

Council, on April 7, 1965, establis~ed the Office of Navajo Eco-
nomic Opportunity (10 NTC 701) for the purpose of insuring that
the full benefits of the Economic Opportunity Act of 1964
"shall accrue to the Navajo people," with the full cooperation
of all divisions, committees and individuals of the Navajo
Tribal Government, and
2. The Advisory Committee has been authorized by the

Navajo Tribal Council to a:fprove general policies , plans of
operation, and programs wh1ch are beneficial to the Navajo Tribe
and Navajo people under Titles I-VI of the Economic Opportunity
Act of 1964 (6 NTC 7), and
3. By a legal opinion from the Office of Economic

Opportunity in Washington , D . C . , it has been held that employees
of DNA and of the Office of Navajo Economic Opportunity are
employees of the Navajo Tribe, and
4 . The Advisory Committee does not approve of the way

the Legal Services Program of the Office of Navajo Economic
Opportunity is being carried out by the delegate agency, DNA ,
Inc . , under the directi on of one Theodore R. Mitchell and of the
actions of certain employees of Theodore R . Mitchell , and
5. It is the opinion of the Advisory Committee that

the interests of the Navajo people in obtaining the benefits of
the Legal Services Program of the Office of Economic Opportunity
will be best served by the removal of the present director of
DNA and certain employees of Theodore R . Mitchell.
NOW THEREFORE BE IT RESOLVED THAT :
1. The Advisory Committee of the Navajo Tribal Council,

in its capacity as the supervisory body over all economic
development projects for the Navajo people , hereby demands the
removal of Theodore R . Mitchell as Director of the Legal Services
Program of the Office of Navajo Economic Opportunity (DNA , Inc . )
.., and the removal of Harlan Crossman as employee and attorney for
DNA , Inc.
2. The Chairman of the Navajo Tribal Council, and the

Executive Director of the Office of Navajo Economic Opportunity,
are hereby authorized and directed to bring this resolution to
the attention of the aforesaid Theodore R. Mitchell, Harlan
Crossman, the Board of Directors of DNA, Inc., the Executive
Board of ONEO, and those officials in Washington and elsewhere,
who are interested in the operations of the Office of Economic
Opportunity.
3. The Advisory Committee of the Navajo Tribal Council

further authorizes and directs the Chairman of the Navajo Tribal
Council and the Executive Director of the Office of Navajo Eco-
nomic Opportunity to take all necessary steps, including the
writing of letters to all parties involved in the Chinle School
Board dispute. Said action shall insure that a problem such as has
been discussed by the Advisory Committee in sessions on June 27
and 28, shall not again arise on the Navajo Reservation.
4. The Chairman of the Navajo Tribal Council is

authorized and directed to take any and all steps he deems
necessary and proper to see to it that the intentions and objec-
tives of this resolution are carried out immediately .
5. The Chairman of the Navajo Tribal Council is

further authorized and directed to t~ke any and all steps he
deems necessary and proper to see that the Executive Director of
the Office of Navajo Economic Opportunity carries out his part
in insuring that the intentions and objectives of this resolution
are carried out immediately .
CERTIFICATION
I hereby certify that the foregoing resolution was

duly considered by the Advisory Committee of the Navajo Tribal
Council at a duly called meeting at Window Rock, Arizona, at
which a quorum was present and that same was passed by a vote
of 11 in favor and 2 opposed , this 28th day of June, 1968.
~~
Navajo Tribal Council
· -
CJM-56·70
CJN-S6-70
RESOLUTION OF THE
NAVAJO TRIBAL COUNCIL
Requesting the Office of Economic Opportunity to

Refund the Legal Servic~s Program for the Navajo People
WHEREAS :
1. The Navajo Tribal Council, by Resolution Nos.

CS-53-64, CJA-6-65 , and CAP-57-66, authorized Navajo participa-
tion in the War on Poverty, and
2 . The DNA Board of Directors consists of 22 members,

17 of whom are Nava
Navajos,
jos, and
3. The Tribal Council

Counci l is only represented on the DNA
Board by 5 members,
memhers, three of whom are appointed by the Council
and two of whom have been elected by the Board, and
4 . The executive staff of the legal services program

should be directed entirely by the Navajo People, and
5 . The legal services program has helped the Navajo

People with over 25 , 000 legal problems and has made great
progress in informing the Navajo People about the law and their
legal rights through its community education program, but
6 . The legal services program should be conducted

with the full and meaningful participation of the NaNavajo
v ajo People
and should be an example of the Navajo People exercising their
rights, initiatives and energies to help themselves,
themse l ves , and
7 . The continuation of a legal services program con-

ducted in such a manner would promote the best interests of
o f the
Navajo People by continuing to provide them with effective
legal assistance.
NOW THEREFORE BE IT RESOLVED THAT :
1 . The Navajo Tribal Council hereby requests the

Office of Economic Opportunity to fund through the Navajo
Tribal Council a legal services program, in the best interests
of the Navajo People.
2 . The Navajo Tribal Council urges OEO to fund a

legal services with 1 million, 500 thousand dollars on behalf
of Navajos who are confronted with legal problems
problems..
3. All Tribal officials and committees shall ·abide 'abide

by the letter and spirit of this resolution and the Navajo
Tribal Council shall exercise control over the conduct,
management, allocation and use of fund~"
fund~,- and activities of
OEO funded legal services programs, .such ,such grant to include
but not limited to all authority required to be granted to
grantee management boards by Public Law 90-222, Act of
August 20, 1964, as ~mended. The Navajo Tribal Council
shall exercise the author-i-ty g~ra'n-t-ed J1€rein i'n--accor-da-n-ce
g~ra·n-t-ed Jl-erein i-n--accor-da-n-ce
with applicable Federal and Tribal law, so that the legal
services program is directed entirely by Navajos to meet the
needs of the Navajo people.
CERTIFICATION
I hereby certify that the foreg'oing
foreg-oing resolution was
duly considered'by the Navajo Tribal Coqncil at a duly called
meeting at Window Roc~, Navajo Nation (Arizona), at which a
quorum was present an~ that same was passed by a vote of 33 in
favor ·and
'and 26 opposed,this
opposed, this 9th day of .June,
.rune, 1970.
1
Chairman·
Chairman'
Navajo Tribal Council
se 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23 Page 210 of 3
FEDERAL PROTECTION OF
INDIAN RESOURCES
HEARINGS
BEFORE THE
SUBCOMMITTEE ON
ADMINISTRATIVE PRACTICE AND PROCEDURE
OF THE
COMMITTEE ON THE JUDICIARY

UNITED STATES SENATE
NINETY-SECOND CONGRESS
FIRST SESSION
ON
FEDERAL ADMINISTRATIVE PROTECTION OF INDIAN

RIGHTS AND NATURAL RESOURCES
PART 3
JANUARY 3, 1972
WINDOW ROCK, ARIZ.
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE

71)...515 WASHINGTON : 1972
se 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23 Page 211 of
CONTENTS
Testimony of- Page
Brown, Eddie, chapter officer, Rock Springs Chapter, the Navajo
Tribe---------------------------------------------------------- 747
Fowler, :i\Iitcllell, economic advisor, Committee To Save Black :i\lesa_ 753
Hanley, Ben, attorney, Dinebeiina Xalliilna Be Agaditahe, Inc______ 737
MacDonald, Peter, chairman, Kavajo Tribal CounciL_______________ 716
Nez Tracy, Descheeney, member, the Navajo Tribe; accompanied by
Clare Thompson, interpreter------------------------------------ 760
Sandoval, Burt, mechanic, Arizona Public Service Co_______________ 752
Todacheene, Cavl, councilman, Xavajo Tribal CounciL_____________ 731
Zah, Peterson, deputy director, Dinebeiina Nahiilna Be Agaditahe,
InC------------------------------------------------------------ 736
Statements, letters, et cetera, submitted for the record by-
Brown, Eddie, chapter officer, Rock Springs Chapter, the Navajo
Tribe: Resolutions of the Red Lake, Crystal, and Tsayatoh
Chapters relating to transmission lines__________________________ 730
Fowler, Mitchell, economic advisor, Committee To Save Black :i\lesa:
Prepared statement on the reclamation of strip-mined land in the
Navajo Nation_________________________________________________ 755
Hanley, Ben, attorney, Dinebeiina Nahiilna Be Agaditahe, Inc.:
Paper entitled "Indian Water Rights"--------------------------- 737
Kennedy, Hon. Edward ~L, a U.S. Senator from Massachusetts:
Tables showing a comparison of the N'avajo Irrigation Project with
the San Juan Project__________________________________________ 733
MacDonald, Peter, chairman, Navajo Tribal Council: Letter from the
California congressional delegation to Secretary of the Interior
C. Rogers Morton, April 21, 197L_______________________________ 719
Renda, Charles R., Regional Solicitor, Department of the Interior:
Memorandum concerning funding of the Water Rights Office, sub-
mitted to the subcommittee on January 5, 1972__________________ 723
Zah, Peterson, deputy director, Dinebeiina Nahiilna Be Agadituhe,
Inc.: Prepared Statement______________________________________ 734
(III)
APPENDIX
Page
1. Macmeekin, Daniel H., "The Navajo Tribe's Water Rights in the Colo-
rado River Basin", April 197L___________________________________ 763
2. Resolution of the Navajo Tribal Council. November 19, 1971, "Applica-
tions for Federal Funds for a Water Research"---------------------- 785
3. Testimony of Miriam J. Crawford before the Interior and Insular
Affairs Committee of the U.S. Senate, May 28, 1971, Page, Ariz.,
"Transmission Lines Through Indian Lands"------------------------ 786
4. Photographs of Four Corners Powerplant, strip mine, and transmission
lines on Navajo Reservation (submitted by the Committee to Save
Black ~iesa)------------------------------------------------------ 788
5. "Fact Summary of the Southwest Power Plants; Ecological and Cul-
tural Effects; Recommended Action", prepared by Native American
Rights Fund, David H. Getches, director, Bruce R: Greene, and Robert
S. Pelcyger, March 15, 1971_--------------------------------------- 791
6. Environmental and Economic Issue: "The Strip Mining on Black Mesa
and the Coal Burning Powerplants in the Southwest", prepared by the
teachers and students of the Environmental Preservation classes· of
of Many Farms High School, Many Farms, Ariz____________________ 805
7. Josephy, Alvin M., "The Murder of the Southwest", reprinted from
July 1971, Audubon magazine-------------------------------------- 831
8. Correspondence on rights of way through Indian lands______________ 844
(IV)
ADMINISTRATIVE PRACTICES AND PROCEDURES RE~

LATING TO PROTECTION OF INDIAN NATURAL
RESOURCES
MONDAY, JANUARY 3, 1972
u.s. SENATE,
SUBCOMMITTEE ON ADMINISTRATIVE
PRACTICE AND PROCEDURE OF THE
CoMMITTEE oN THE JUDICIARY,
Window Rock, Ariz.
The subcommittee met, pursuant to notice, at 11 :17 a.m., in the
Navajo Council Chamber, Window Rock, Ariz., Senator Edward
Kennedy (chairman of the subcommittee) presiding.
Present: Senator Edward Kennedy, presiding.
Also present: James Flug, chief counsel; Thomas Susman, assistant
counsel; Henry Herlong, minority counsel.
Senator KENNEDY. The subcommittee will come to order.
We, first of all, want to express a very warm sense of appreciation
to Chairman Peter MacDonald and all the members of the Tribal
council, and all the others who have been so kind and generous with
their cooperation in helping to make this hearing possible. This is a
hearing by the Administrative Practice and Procedure Subcommittee
of the Judiciary Committee in the U.S. Senate, and while this is an
official subcommittee hearing, I wa.nt at the outset to say how pleased
and delighted that I am to be back in Window Rock. I have very fond
memories here, having had a chance to visit and speak to the first
graduating class at Rough Rock School in 1969. My niece Kathleen
worked out here in the course of one summer, and although the climate
and t:Jhe temperature were a little different in June of 1969, the warm
reception and the friendliness that have been extended to us by the
Navajo Tribe have once again made us feel at home. So I want again,
at the very outset, to thank all of those who have been so kind and
hospitable to us for the reception that they have given us.
At the outset of the hearing as well, I would like to say that we
regret the amount of time that we are able to spend here. It is never
as long as we would like; we would like to be able to spend at least a
full day, not only for the formal part of the hearing but also to be
able to have informal meetings and conversations-not only to talk
with the official members and spokesmen for the tribe, but also to
have a chance to visit the homes and communities, to talk with the
housewives, to talk to the children about school, and to talk to as many
different groups as we possibly could. vVe are unfortunately unable to
do so in terms of this hearing, but this does not mean that we are not
interested in their views and that we are not concerned about their
interests and their welfare. This hearing is a continuation of my own
(713)
714
personal interests in the opportunities and problems affecting Amer-

ica's first citizens. I think many of you knew that Robert Kennedy
was the first chairman of the Indian Education Subcommittee of the
U.S. Senate, which held very extensive hearings throughout the
country. Then in 1968 I succeeded him as the chairman of that
committee.
We filed a very extensive report with a series of recommendations.
Some of the recommendations of that Indian education report were
included in a bill passed by the U.S. Senate only a few months ago.
It's still awaiting action in the House of Representatives. Of the rec-
ommendations that were filed by the Indian Education Subcommittee
some. have been implemented, 'but far too many have not, and this
remams as a constant challenge to those of us in the Congress and the
Senate who continue our interests in Indian education and other
Indian human resource development, as \yell \Yell as natural resource
development.
And so I come back here to 'Yindow Rock "ith ''ith the recognition that
there has been some small achievement and accomplishment, but that
the greatest responsibility and the greatest work remain for all of us.
But I come back here as someone who has a continuing interest in the
opportunities and problems that are confronting not only the Navajo
Tribe, but also all Indians in this country.
At the outset I just wanted to make those comments. And I have a
brief statement, and then we will move right into the real purposes of
the hearings-and that is to listen.
'Ve meet today to ask some Yery yery difficult questions and to assure
ourselves and American Indians that the difficulty of the questions
will not prevent us from seeking real answers.
The scene of our hearing represents the setting for the issues we will
take up. The magnificent mesas and canyons and vaneys valleys and rivers
which we flew above this morning and which surround us here are to
all Americans a natural resource and a national asset of the highest
order. They give us a sense of nature's majesty and escape from the
close man-made caverns of our cities, a place to find beauty and peace,
to see in vivid color the history of the earth unfolding before our eyes.
So we want to protect, to preserve them even if no one at all lived on,
in and around them. But someone does inhabit them. They are the
home of thousands of America's first inhabitants. Their waters irri-
gate Indian crops and their grasses feed Indian sheep. They are not
only the economic wellspring of the Indian existence-Indian lives,
heritage, culture and religion are intimately bound up with .the soil
and water, topogr;tphy
topogrp.phy and air. They are the source of the IndIan
Indmn past
and the elemental guarantee of the Indian's future as a people.
The U.S. Government has recognized the rights of the Indian
people to Indian lands and waters by solemn treaty and by court
decision and by law. The Nation has guaranteed America's Indians
full ownership of clearly defined territories and all that lies within,
under, or over them. The earlier policies of using force, thievery, and
trickery to s~parate Indians from tl.leir
tl.1eir lands .have: been replaced by a
national p~hcy. of Federal trusteeshIp
trusteeship for ~ndlan
~ndian rIghts
nghts and resom:ces.
This polIcy,
pohcy, III
m theory, says to every IndIan
Indian the full force and.mIght
and.might
of the white man's government which once was your adversary IS IS now
your protection. vVashington is not only your friend but your advo-
715
cate, preserving your rights against all challengers. But a year of o£
study by our subcommittee and 3 days of hearings this fall in W'ash-w·ash-
ington have convinced us that the facts fall far short of that theory.
For all too frequently the U.S. Government is itself the challenger of
Indian rights or the supporter of other challengers, producing an
irreconcilable conflict of interest usually at the expense of the Indian
people. And all too frequently the Federal bureaucracy has operated
too slowly, too silently, too secretly, too timidly, to meet its trust
responsibilities.
The same Interior Department which is supposed to be the Indian's
protector through its Bureau of Indian Affairs is the Indian's antago-
nist through its Bureau of Reclamation and other units. The same
Justice Department which is supposed to argue for Indian rights in
court also argues not only for the Bureau of Reclamation but for the
Government when it defends itself against Indian claims. And some-
how the bureaucrats, whose jobs are to promote the interest of the coal,
gas, oil, electric power, and agribusiness interests, are the aggressive
and successful ones both within the executive branch and as lobbyists
in Congress. Or the bureaucrats responsible for Indian interests are
unable to muster high level executive support, administrative funding,
or congressional appropriations for Indian projects. Some of this IS
changing. Especially since our inquiry began, there have been low
level shakeups and high level rhetoric; but as we have seen and as we
will hear today, the institutionalized conflicts of interests and the pro-
cedural barriers remain and continue to be reflected in a seamless web
of exploitation of Indian resources for non-Indian purposes.
Across Navajo territory, huge machines are gougmg great scars in
Indian soil, to take Indian coal through pipelines using Indian water
or by rail over Indian lands, to powerplants which pollute the Indian
atmosphere, to generate power some of which will in turn be used to
divert more Indian water. Of course, exploitation can be a neutral
word. Often landowners choose to allow their minerals and waters
and rights-of-way and air space to be utilized by others in return for
payment. For wherever there is to be industrial and economic progress,
there must be utilization of land and its attendant resources, and as
the Sierra Club motto says, "our goal should be not blind opposition to
progress, but opposition to blind .progress."
,progress."
But how does one measure progress when Indian lands and rights
and resources are concerned? How do we balance the very real and
pressing economic needs of the Indian people against the fact that
each incursion on their resources contributes .to an irreversible erosion
of their way of life? On what scale do we test the proposition that
America will be a better place if it destroys a village of
o£ Navajo hogans
so that Tucson can add more subdivisions? The answer is that we do
not decide. The Indian people must decide for themselves. But if their
progress is not to be blind, the decision must be made with unobscured
vision. Before they conclude that the power and coal development is
justified by creation of a few hundred Indian jobs, they must know
why the tribe is receiving less for its coal than the State is receiving
taxes on it. \V'hy the promises to restore the land are so vague and
weak. 'Why the water arrangements seem to leave the industries with
so
SQ much and the Indians with so little. \\Tby\\Thy the powerplants were
allowed to be built without effective antipollution devices. In short
they must determine on the basis of full information whether they
e 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23 Page 216 of
716
have the very short end of the deal, whether, as some of them think,
the whole arrangement is second only to the sale of :Manhattan
Manhattan Island
in the annals of unconscionable contracts.
If, on the basis of all the facts, they conclude that they have been
had, then we want to know why. 'V"e want to know where the Fed-
eral Government was when it should have been providing the so-
phisticated knowledge and the bargaining initiatives and legal
backup and the financial supp_ort
support and the official leverage to assist
the Indian people in securing ·a 'a fair and equitable bargain out of one
of the most massive and complex natural resource deals in history.
We want to make sure that the Federal Government is not and will
not be a party toa
to a rank neocolonialism that plunders primary Indian
resources that gild the lily of urban life in far off cities.
citIes. '"
,V"e want to
make sure tJhat every Federal official keeps firmly in mind the special
trust responsibility to American Indians, that no Federal official hides
informa;tion which ·tribes
'tribes need in order to make decisions about their
assets, that no Federal official stand silent when he finds Indian rights
being unfairly compromised.
The first witness today will be the distinguished chairman, Tribal
chairman Peter :MacDonald.
MacDonald. I want to extend a warm word of wel-
come to 1\ir.
Mr. :MacDonald.
MacDonald. I have many times taken advantage of his
unique understanding and expertise in Indian affairs and called him
to seek his guidance on many matters which have been before the
Senate. He has always been extremely responsive and helpful to us
in the Congress, and I want ,to •to extend a warm word of welcome to 1\ir.Mr .
·. MacDonald.
Mr. l\iAcDoN
1\ir. MACDoNALD.
ALD. Thank you very much, Senator Kennedy. vVhen
I received your invitation to testify concerning practices and proce-
dures relating to Indian rights and natural resources, I was honored
and also hesitant. I was hesi•tant
hesi,tant because this isa
is a political year and
you know we have a host of politicians of every shape out here can-
vassing the country and I'm sure that we the Indian people have been
the object of more unfulfilled political promises more often, more
times, •than
,than most people, but seriously when we are given an oppor-
tunity to speak about our problems we must do so because we need
the support of the general public as well as •the ,the officials in the
Government.
Before going on with my statement, I would like to take this oppor-
tunity to welcome you to the Navajo Nwtion. vVhile the Kennedys are
no strangers to the Navajo country and Indian reservations, we're
very happy that you have come here to visit with us ·again. ,again. This is
qu~te an accomplishment for you I'm sure to be here within the last
21;2 years to the Navajo country. I say it is quite an accomplishment
because some of our own Congressmen we have not seen for 6 years.
They are supposed to represent us and come and see us from time to
time so you have honored us by coming out and be concerned about
our problems and be with us here today.
I would like at this time also to recognize and for you to get ac-
quainted with some of the members of the Navajo Tribal Council who
are here with us today. I would just ask them to stand if they are here
in the chambers. Members of the Navajo Tribal Council.
('¥"hereupon
nV"hereupon the Navajo Tribal Council members stood.)
Mr. MACDoXALD.
MAcDoxALD· And also the vice chairman of the Navajo Tribal
Council, Wilson Skeet. As you know we have a 74-member council
717
and most of them are out on committee work but some of them are
here with us today. Thank you very much.
Also I would like to commend Senator Kennedy for his outstanding
support of Indian education and certainly for his strong support of
the Navajo Community College bill, bill. It is leaders like yourself who
have the compass.ion
compass_ion and the courage to stand up for the less :fortunate
fortunate
in our society which gives us hope and :faith
faith that someday our people
will once again achieve the dignity of political, economic, and social
adjustments. For all we want is what is rightfully ours; to protect
what rightly belongs to us and to do :for
for ourselves those things which
others have been domg for us. I know the task that you and others have
undertaken on our behalf is a very difficult one indeed, for most
political leaders would prefer catering to those whose votes and money
are substantial. vVe have neither. Therefore, I wish to encourage you
and your colleagues in Congress to continue your efforts and commit-
ment to the cause of Indian self-determination.
NAVAJO WATER RIGHTS
The Navajo Tribe is facing a water rights crisis. On one hand the
rapid increase in Navajo population and the declining wool market
make it imperative that we convert immediately from a pastoral
economy to an economy of intensive agriculture and industrializa-
tion. Both of these require greater amounts of water,water. On the other
hand, at the very time that we are compelled to develop our water
resources we find that they are being taken from us by other users in
violation of our legal rights. Unless the Navajo Tribe can assert and
utilize its water rights to the Colorado River system, the Navajo Na-
tion will not achieve in this generation an economy which will be self-
sustaining. To understand the urgency of our needs, one must visualize
the reality of life on the Navajo Reservation. The reservation includ-
ing the Checkerboard area and the private land holdings of the tribe
is the largest of all Indian reservatIOns.
reservatiOns. It encompasses a portion of
New Mexico, Utah, and Arizona. Its land la-nd area is approximately the
size of the States of Vermont, Rhode Isla.nd,
Isla-nd, New Hampshire, "Mas-
'Mas-
sachusetts, and Connecticut combined. Except for the San JJuan nan and
the Colorado Rivers bordering the reservation on the north and west
there is not a single permanent stream within the reservation. The
average rainfall is about 8 inches per year, most of which comes in
.torrential late-summer rains. Thousands of square miles are devoid
of vegetation, sterile and virtually useless without the magic touch of
water. The grazing of livestock, mainly sheep, has been the traditional
mainstay of the Navajo livelihood enabling our Navajo people to
scrape out a living from the bare resources of the land.
The land in its present state cannot adequately support the 130,000
Navajo people living within the reservation boundaries, most of whom
depend on livestock for a living. Faced with this situation, we have no
alternative but to develop a modern economy that will support our
people and this requires water. ·water
·Water from the San Juan and Colo-
rado Rivers, the only permanent surface water available, is rapidly
being used up to the exclusion of the Navajo rights.
For years our Congressmen and officials in the Interior Department
have assured us that water would be available for our use when
needed, that the U.S. Government in creating our reservation
718
promised by implication to reserve and protect enough water to make

the reservation agriculturally productive. vVe have been given so many
assurances that if our experience is not otherwise, we would feel con-
fident that our water is protected but reg-ardless of assurances the
fact is that water is being taken by others. The Colorado River system
is fast being depleted by new dams, new reclamation projects, new
water delivery contracts and other uses generated by huge population
increases in the Colorado River Basin. In fact some experts tell us
that when the reclamation projects presently authorized and under
construction are completed, every drop of water flowing through the
Navajo Reservation will have been claimed by some downstream
farmer: some industry, some city or by Mexico whose rights have been
farmer,
repeatedly recognized by treaty.
If the United States honors its treaty with Mexico, then by the same
token it must honor its treaty with the Navajo Nation. If people in
California, Phoenix, or Albuquerque are to have water, then it must
not be done by leaving the Indians starving and thirsty on a scorched
land. The country has the technology and the resources to satisfy the
demands of its people. ",Ve "'\Ve are now asking the U.S. Congress to honor
its treaty obligation with specific legislation to protect our rights.
The basic problem increasingly recognized is that the Department
of the Interior, specifically charged with protecting Indian interests
as their trustee, is so enmeshed in conflicts of interests that in the final
analysis it usually compromises Indian interest to competing claims
by the Bureau of Reclamation, the Bureau of vVildlife, vVildli:fe, and Sports
Fisheries, the minin~ industry, the electrical power industry and
other interest groups. I need cite only a :few few examples.
On December 10 of 1969, the Solicitor of the Interior Department
issued an official opinion at the request of the Upper Basin States
which flRtly
ftrttly strutes that the Navajo Tribe's water rights in the Upper
Colorado River Basin within Arizona are limited to a maximum of
50,000 acre-feet per year. Fifty thousand acre-feet per year seems like
a lot of water until you realize that Page, Ariz., will use 3,000 acre-
feet and the new proposed and under construction Page powerplant
will use 34,100 acre-feet per year. That opinion is reached by the inter-
pretation of various contracts to which ·theN ,the Navajo
avajo Tribe is not a party
and entirely ignores the reserved rights doctrine repeatedly enunciated
by the U.S. Supreme Court. Even a layman could see that the Solici-
tor's opinion is contrary to the law and that it represents a flagrant
disregard :for
for the Indian rights by .the,the principle attorney :for
for the very
department charged with asserting Indian interests, not merely as an
advocate but as a trustee.
One can only infer that the rthe Solicitor has violated his trust to the
Navajo Tribe under pressures :from from competing interests in the Upper
Basin States. A second recent example of the :failure failure of the Depart-
ment of Interior to represent Indian interests is the :failure failure of the
Secretary of Interior to aggressively represent Indian interests in the
famous or infamous Eagle County Oounty case recently decided by the U.S.
Supreme Court.
Rather than recounting the remarkable abuse of trust by the De-
partment of Interior, I am submitting with this statement a copy of
a letter to the Secretary dated April April21,
21, 1971, from the California con-
gressional delegation detailing the :facts.
facts.
(The letter :follows:)
follows:)
719
U.S. SENATE,
Washington, D.O., April 21, 1971.
April21,
Hon. C. ROGERS
RoGERS MORTON,
MoRTON,
Secretary of the Interior, Department of the Interior, Washington, D.O.
DEAR MR. SECRETARY: We are deeply concerned about your apparent disregard
of the Indian policy announced by President Nixon last July when he said:
The United States Government acts as a legal trustee for the land and
water rights of American Indians ... The Secretary of the Interior and the
Attorney General must at the same time advance both the national interest
in the use of land and water rights and the private interests of Indians in
land which the government holds as trustee.
Our concern in this instance is over your failure to inform the United States
Supreme Court of the interests of the Fort Mojave Indians and all others simi-
larly situated in Eagle River Case No. 87 and Water Division No. No.5,5, Case No.
812 before the rendition of the decisions on March 24, 1971. This failure is mag-
nified by the words of the Solicitor General to the Fort Mojave Tribal Attorney
on October 27, 1970, that:
... The Department of Justice has important responsibilities for the pro-
tection of Indian rights.
We have been advised that you were contacted about these cases by attorneys
experienced in Indian law and water rights. These legal representatives of at
least 8 Indian tribes informed you of the vital interests of the Indians in those
cases and requested that their position be made clear in the government briefs.
Further, at the request of the Solicitor General, the Fort Mojave Tribal At-
torney in a letter to the Solicitor General dated November 28, 1970, spelled out
in considerable detail the position of the Indians that the case would be harmful
to the Indian water rights unless Indian water rights were clearly distinguished
from general federal water rights.
It came as a shock to us to learn that the government briefs were silent regard-
ing the positive Indian interest in the said cases. We believe that this failure
constitutes a violation of your trust responsibility to the American Indians.
We know that on April 12, 1971, the Tribal Attorney submitted a Motion for
Leave to File a Suggestion of Interest on behalf of the Fort :Uajove
:\Iajove Indians and
all others similarly situated. This Motion has subsequently been filed. We
respectfully request that you inform us how you intend to respond to this Motion
and specifically whether you intend to fulfill your trust responsibilities to the
Indian". '" e further request, in order to mitigate the present conflict of interest
Indian;;. "'
situation, that you support the establishment of an Indian legal advocate within
the Department of Justice until Congress creates an Indian Trust Counsel
Authority as requested by the President.
·with sincere concern,
·With
(S) John Tunney
JOHN V. TUNNEY,
U.S. Senate.
(S
S)) Alan Cranston
ALAN CRANSTON,
U.S. Senate.
( S) Jerry L. Pettis
JERRY L. PETTIS,.
PETTIS,-
Member Of
of Oongress.
Mr. MAcDoNALD.
MACDONALD. A third example of o:f this conflict of
o:f interest can be
found in the Arizona v. California
:found Oalifornia proceeding in the Supreme Court.
Early in those proceedings the Navajo Tribe, recognizing potential
conflicts in representation ofo:f its interests, petitioned for separate
counsel, but that petition was denied. The United States subsequently
:failed
failed to present a :forceful
forceful case :for
for the Navajos refusing even to take
exception to findings by special master excluding Navajo claims :from from
consideration. As a result the
theN Navajo
avajo Tribe lost a possible opportunity
to have its right adjUdicated
adjudicated in the most important and :favorable
favorable case
involving Indian water rights that has ever been handed down by the
Supreme Court.
The lesson to be learned :from
from these events is that we cannot com-
pletely reply on those whose primary responsibility is to protect our
720
w·e will need the support of

rights. W' 'Of Congress as well as the general
public who are concerned about the abuses the American Indians are
suffering-have suffered in the past and are suffering even today.
RECOl\IMEND.ATIONS
RECOl\IMENDATIONS
With respect to administrative changes within the scope of this com-

mittee's work, I have several suggestions. First, the Central Arizona
project, an enormous area of conflict, might be partially resolved
by calling upon the Department of 'Of Interior to immediately stop that
project until it has fully determined the extent of Indian water rights
affected by that project and the possible death blow that the project
may deal to the development of a self-sufficient economy based on the
Navajo and other Indian reservations along the Colorad'OColorado River.
Second, an administrative procedure should be established requiring
that in any litigation involving the United States and the interest of
Indian tribes, the Justice Department assign specific attorneys to
shape and prepare the Indian position in consultation with Indian
tribes affected. A spe-cific assignment procedure, while by no means an
adequate solution, might at least mitigate some of the more flagrant
omissions such as occurred in the Arizona v. CaliforniaOalifornia and in the
Eaqle County
Oounty case. ·.
Third, an administrative procedure should be adopted requlrmg requ1rmg
that any opinions by the solicitor pertaining to Indian matters of
significance in court not be official until a draft of the opinion has been
published in the Federal Register and all interested persons be given
90 days to submit written comments to be retained in a public file.
Even though solicitor's opinions are of limited legal significance they
do have important policy implications. In view of the int.ensive
intensive con-
flicts of interests in the
t.he Solicitor's position, some steps toward an
adversary process preceding issuance of opinion should be undertaken.
Publication and public file for comments would constitute a modest
first step in that direction.
Fourth, I would like to turn from this specific issue of o£ Indian water
rights to a matter of legal representation in a somewhat larger sense.
Not only do Indian tribes lack adequate legal representation in assert-
ing treaty rights and in protecting"
protecting their natural resources, the Bureau
of Indian Affairs itself is without legal representation.
The Solicitor's Office acts as a prosecutor, defense, judge, and jury
and I strongly urge that the BIA should have its own independent
legal counsel's office separate and distinct from that of the Solicitor's
Office in the Department of Interior. It has long been true that creative
and bold initiatives and reforms attempted by the Bureau officials over
the years have been stopped dead in the Solicitor's Office due to some
alleged technicality. The Bureau urgently needs counsel of its own to
make its own case.
I would therefore urge as a matter of top priority that wherever
the Bureau is located now or in the future it needs its own General
Counsel's office so that Indian interests on a national level may be
supported by independent counsel. The real subversion of Indian
rights, the real conflict of interest comes from within the agencies
charged with the Indian trust. It's almost invisible except to t.hose those of
us who have been experiencing the consequences of these conflicts, the
victims of these unfortunate circumstances.
730
to us here this morning. Let me just ask you a final question about
evaluating the contract that was made with the Utah Mining Co. As
we were driving past Four Corners we saw another smaller plant, the
San Juan plant. The Utah Mining Co. indicated to us that they had
made a contract ,yith
'vith them in terms of development of that facility.
The Public Service Co. was apparently going to purchase coal from
the lnndmvner, and the coal was going to be mined under contract.
'Vouldn~t it have been much more desirable for the Navajo Tribe to
have that similar kind of an arrangement with the power company,
so that you would be sort of subcontracting and thus participating in
the growth and expansion and the profits in a very real way? Doesn't
that seem to be a much more equitable kind of arrangement to be made
in this situation?
situation ?
Mr. MACDONALD.
MAcDONALD. Definitely, we would prefer that.
Senator KENNEDY. 'Vhy doesn't the BIA press this or push this or
advise you better on this? This isn't a very new kind of concept in
business practices today.
LACK OF ADVICE AND SUPPORT FROllI
FROl\I BL-\
Mr. MACDONALD.
MAcDoNALD. The BIA first of all are not business people, BIA
are career people.
[Applause by the spectators.]
Senator KENNEDY. And yet they are supposed to be giving you
business advice, is that right?
Mr. MACDONALD.
MAcDoNALD. Yes. They are not business people; they are old
rangeriders from back in the 1930's--
[ Applause by the spectators.]
[Applause
~rr.. }L\cDoNAI.D
-:\Ir .:\L\c DoNALD (continuing). ·who
'Who have worked their way up into
the top echelon so therefore they cannot possibly give any business
advice. So that is one reason why I think most Indian people across
the country would like to see them be more involved in the Bureau
operations. They would like to see their own people in Bureau pro-
grams because we have much more faith in our ownselves than some-
one who really don't know the language and the culture and tradition
as we know it, plus don't even know the trade that they are supposed
to be in to give us advice on. So this is the reason the Bureau hasn't
been able to do anything and this can be evidenced by many of the
contracts and the policies and regulations that they have constantly
come forth with every year. Also it can be evidenced by the fact that
they have not been able to aggressively move forward because they are
afraid to make a mistake.
Senator KENNEDY. The Bureau of Reclamation doesn't make many
mistakes, do they?they ?
Mr. MACDoNALD.
MAcDoNALD. No; they are experts in there; they are experts in
taking Indian lands.
rI Applause by the spectators.]
Senator KENNEDY. No rangeriders among that Bureau of Recla-
mation.
Thank you very much, Mr. MacDonald, you"ve you·ve been terribly help-
ful. I just want to commend you for what you're attempting to do. I
think that it's a wholly creative and imaginative program and it's one
which I'm terribly interested in helping and assisting in every way.
731
I want to thank you very much for your appearance here and for
your comments.
Mr. MACDoNALD.
MAcDoNALD. Thank you for the opportunity. We really appre-
ciate your coming down to the Navajo country. Again I want to state
that our job is a difficult one. Nevertheless with men like yourself and
others in Congress who have committed themselves and dedicated
their leadership to helping the Indians in whatever capacity that they
have and we really appreciate it. And with that understanding, I
know that we will eventually get above ,vhere \vhere we are right now.
Thank you very much.
Senator KENNEDY. Thank you very much.
[Applause by the spectators. ]J
Senator KENNEDY. vVe have a few more witnesses now and we will
continue on. The next witness is Mr. Carl Todacheene. Mr. Todacheene,
we'll file your entire statement in the record. If you would summarize
it, we'd appreciate it.
DELAY OF NAVAJO IRRIGATION PROJECT
Mr. TODACHEENE.
ToDACHEENE. Mr. Chairman, Mr. Kennedy, and members of the
committee: I think we're greatly honored to have this committee here
on the Navajoland. As Chairman MacDonald has emphasized that the
Navajo people are now trying to get from a pastoral economy to that
of industrial, so to speak. Now, along with that we have a project
which we would like to remind your committee of that was authorized
on June 13, 1962, by our beloved President John F. Kennedy. That
this project is supposed to allocate 500,000 acre-feet of water to irrigate
110,630 acres of land. The first water is supposed to have been de-
livered in the early 1970's but because of the lack of appropriations
and attention, this has been greatly delayed. In fact, just for the fiscal
year 1973 we were hoping that we could get $15 million to try and keep
that in line, however, the powers that be at 'Vashington
'V"ashington have reduced
that amount to $10,500,000. Now, if the difference can be restored,
we're just hoping that the thing could be expedited whereby we could
be getting the first block of 10,000 acres under irrigation by 1975.
vVe are very much interested in this project. vVe feel that it will
help a lot of our people and that there's potential for employment;
that we will become producers which our people are known for and
we'd be very much interested in getting the committee's assistance in
getting this project in on a time schedule as it can be made. vVe
vVe would
just like to bring that forth to this committee. I think that you are
familiar with it, you were in Farmington, this project is just immedi-
ately to the south of Farmington, N. Mex., and just to the east of the
powerplant that you are talking about and we're very much interested
in this project. We don't like the Government to try to reduce the
project like they've done in the past.
Since we're talking about the water rights, we are told that at one
time by the Secretary of Interior that they tried to change the project
from 110,000 acres, they recommended 70,000 acres and even as little
as to 45,000 acres. Now, we don't want that to happen. 'Ve 'V"e feel that
the Government should honor their bill. This should be fully-we want
that 500,000 acre-feet of water to irrigate 110,000 acres of land. We
certainly want that as soon as it can be done, Mr. Kennedy.
732
"BUY INDIAN ACT" CONTRACTING
"With
'With that I also would like to bring forth to your attention that
there is a law that has been in existence since 1910. It is called the Buy
Indian Act. Under this act the Bureau of Indian Affairs is expected
to buy Indian made products. Now, about a year ago a group of
Navajos set up a dairy to provide milk to the schools on the reserva-
tion, hmvever, this is not so any more. Now, I think our people tried
to do this since 1910 and yet today that contract has not been renewed
and a billion donal'
doJlar company by the name of Meadow Gold that's now
producing-is carrying a contract. 'Ve \Ve feel that the Bureau of Indi·an
Affairs and other Government agencies have failed. Through this kind
of a thing and the so-called Buy Indian Act, a lot of our people could
have been assisted thus reducing the 67 percent that the chairman just
said of unemployment. This could have assisted by pumping some of
this Federal money in. It's been done; they've been doing it to all the
non-Indian businessmen all these years and have been laying off this
Ill, w that existed since 1910. 'Ve
law \Ve feel that a lot of our people could be
helped and we want to call i,t i·t to the committee's a:ttention. vVhy is tllls
tlus
so; why is not this act being used to help our people on this reserva-
tion? "r smne of
\\Te'd like to see SOlne o£ our people providing schoolbooks and
papers through this Buy Indian Act. 'Ve'd \Ve'd like to see some of our own
people in the construction business, constructing roads, building
buildings under the Buy Indian Act where they can be given an
allowance to set up their own companies and we missed that.
vV e would like to also call your a:ttention to the fact that this had
vVe
been tried, but as a:s of April 27, 1971, the Bureau of Indian Aff'airs
Aff·airs
changed rules on this kind of a thinking. vVe wish it could be rectified,
Senator. Thank you very much for letting me say this on behalf of
our Navajo people. I'm so glad that you could be with us and we ap-
preciate it very much.
Senator KENNEDY. I want to ask just one question. I have before me
tables showing a comparison of the Navajo irrigation project with the
San Juan-Chama project. This will be included in the record. One
line gives the BIA annual budget request for the Navajo irrigation
project. Underneath it, is the Bureau of the Budget allowance which
m each case is significantly below the BIA request. Below that is the
III
money appropriated by Congress. Without exception the amount that
was appropriated by Congress was the amount approved by the Bu-
reau of the Budget. We have figures from 1963 through 1971 and some
stUJtements
st3!tements by Mr. Bruce about what they are going to request for
1972. In 1971, for example, there was ·absolutely
,absolutely no money requested
by the Bureau of the Budget. In spite of that Congress put in some
$4 million. In 1970 the original schedule was for $11 million. The BIA
requested some $15 million, the Bureau of the Budget approved only
'and the Congress went up to $5 million. But once again-
$3 million, •and
the Navajo irrigation project gets a very small allocation by the Con-
gress. Generally, I would say the budget request is less ,than •than half
hal£ of
the original schedule.
(The tables referred to follow:)
BUREAU OF INDIAN AFFAIRS-NAVAJO PROJECT
1963 1964 1965 1966 1967 1968 1969 1970
Original control schedule .July 4, 1964 ..•.. --------------------------------- .••. ---------- _•... __ __ __ $7, 400, 000 $13, 500, 000 $18, 800, 000 $24, 700, 000 $19, 600, 000 $11, 100, 000
BIA annual budget requests •••••••• -------------------------------------------------- $4,950,000 9, 000,000 13,500,000 12,500,000 15,000,000 15,000,000 15,000,000
Bureau of budget allowance._ •• ______ ------ ______ --------------------------__________ I, 800, 000 4, 700, 000 6, 500, 000 6, 498, 000 5, 300, 000 3, 548, 000 3, 500, 000
Appropriated by the Congress .••••••.. ---------------------------------- 1 $300,000 I, 800,000 4, 700,000 6, 500,000 6, 498,000 5 300,000 3, 548,000 5, 500,000
Difference between preliminary estimate and appropriation ••.•••••• ------------------------ 3,!50,000 4, 300,000 7, 000,000 6, 002,000 9, 700,000 11,452,000 9, 500,000
Projected rate of funding'-- ••••••••••••••••••••••••••••••••• _•••••••••••••••••••••••••••••••••••••••••••••.••••••••••••• -- ••• ----- •• -- •••••• -- •••• -------------------------------------
I Funds made available by transfer from other BIA projects. 'Taken from project control schedule, dated Dec. 15, 1970:
Funds requested fiscal year 1964 through 1972 ..• __ .. ______ .. ____ .. _____ . __ . $114, 950, 000
Funds appropriated fiscal year 1964 through 1972.... ------------------------ 46.846,000
TotaL ____ • ____________ •• ______ • ___ •• ______________ • ___________ •• ___ ._ 68, 104, 000
Original total estimated cost, $176,500,000. Revised total estimated cost, $206,000,000. (Authorized
P.L. 91-416 dated Sept. 25, 1970.)
Balance to
1971 1972 1973 1974 1975 1976 1977 complete
Original control schedule, July 4,1964.----------------------------------- $7,800,000 ------------------------------------------------------------------------------------ $32,728,01

BIA annual budget requests •••••••••• -----------------------------·---- !5, 000,000 $15,000,000 $15,000,000 ----------------------------------------------------------------------
Bureau of budget allowance._ •• ________ ----- ______ ---------- __ --------------_________ 9, 000, 000 10, 500, 000 ------------------------- __________________________ -------------- ____ _
Appropriated by the Congress ________ •••• _____ --------- _____ -------..... 4, 000, 000 9, 000, 000 _________ .• ______________ -------------------------------------------- .• ----------- __
Difference between preliminary estimate and appropriation.________________ II, 000,000 6, 000,000 ------------------------------------------------------------------------------------
Projected rate of funding'·--- ••• ______ ------- •• ______ -------------------------------- 9, 000, 000 15, 000, 000 $15, 000, 000 $15, 000, 000 $15, 000, 000 $15, 000, 000 84, 301, 615
734
BUREAU OF RECLAMATION-SAN JUAN-CHAMA PROJECT
(Authorized by the same act authorizing the Navajo project]
Budget request Congressional

Fiscal year (as scheduled) allowance
1963 ..
1954 -----------------------------------------------------------------_
__________________________________________________________________ $550, 000 $550, 000
I, 600,000 I, 600, 000
1965 ______________ ----------------------------------------------------- 7, 000, 000 7, 000,000
1966 ____ --------------------------------------------------------------- 9, 900, 000 9, 900, 000
1967 14, 200,000 14,200, OGO
1968::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: 12,862,000 12, 862,000
1969 ____________ ------------------------------------------------------- 9, 454, 000 9, 454, 000
1970 ______________________________________ ------------·---------- ------- 6, 300, 000 6, 300, 000
1971 ______________________________________________________________ ----- 4, 272, 000 4, 747, 000
1972 __________________________________________________________________ _
369,000 I, 069,000
SenaJtor KENNEDY. On the other hand, you have the San Juan-
Chama project which is under the Bureau of Reclamation. Going
back from years 1963 through 1971, the Bureau of the Budget re-
quested the money that was scheduled for thaJt program and from 1963
through 1971 Congress appropriated every cent of i·t.
On the one hand you have an Indian project, the Navajo irriga-
tion project, funded at a little less than half of the schedule, and on
the other hand the Bureau of Reclamation has full funding. Is that
what brings distrust and causes suspicion among the Navajo Tribe?
Is it the double dealing, so to speak, within the Interior Department?
Mr. ToD.\CHEENE. 1Ve're very much disappointed, Senator. vVe rea-
lize •that this has happened and we have called it to the attention of
the ,-arious officials in vVashington. Even though we gave up what we
call our 1Vinters Doctrine water rights so that we could have co-
extensive development on the transmountain diversion and Navajo
irrigation project, this has not happened. They've been fully funded,
they are over-they are almost 100-percent complete while we're only
roughly 25-percent complete. Now if the Government can honor their
word and honor the bill that was signed by John F. Kennedy, that's
nil we're asking for. Givens a break instead of talking about reducing
the project. Give us a chance, bring the water as agreed so we can try
to help our people, try to help at least 30,000 of our people to furnish
themselves with basic products.
Senator KENNEDY. Thank you very, very much for your very help-
ful comment and statement. vVe appreciate it.
1Ve have a group of witnesses now. \Vould Peterson Zah, Ben
Hanley, Eddie Brown, nnd Herbert Morgan come up.
('\Thereupon, Peterson Zah, Ben Hanley and Eddie Brown were
seated at the witness stand.)
Senator KENNEDY. \Ve had a chance to visit with J\Ir. Zah last
evening and again this morning. I apologize for the tightness in our
schedule. 1Ye want to w·elcome you here. I know you have a statement
which we'll include in the record as read. Mr. Zah, is there anything
you \Yould like to add to this statement?
(l\Ir. Zah's prepared statement follows:)
TESTIMO:.'<Y OF PETERSON ZAH, DEPUTY DIRECTOR, DINEBEIINA NAHIILNA BE
AGADITAHE, INC. (D.N.A., INC.)
U.S. SENATE SUIJCO:\IMITTEE ON AD.MINISTRATIVE PRACTICE AND PROCEDURE
The Navajo Nation needs economic development. Our people are desperate for
~mployment and business opportunities which will enable them to raise their
735
families and live their lives in Navajoland. Economic development requires the
use of resources, people and their skills, the land, the water and the air.
I will briefly discuss the kind of economic development which has been
exported to the Navajo Nation by large and powerful coal, power and water
interests, and some of the consequences to our Navajo resources of this sort of
development.
In the simplest terms what is happening in the Four Corners Indian County
can be stated as follows: Navajo lands are being stripped for Navajo coal.
Navajo coal is being used to generate electricity at a series of huge power plants
located on or nearby the Navajo Nation. Vast amounts of Navajo water are being
used to cool the generators and transport the coal. The famous Navajo sky is
being clouded by pollution from the smoke stacks. Much of the electricity pro-
duced is scheduled to be used to pump millions of acre feet of water into central
Arizona. Many believe that this treasured resource rightfully belongs to the
~avajo Nation and other Colorado River Indian tribes. Past court decisions sub': sub.:
stantiate this belief.
A few examples will illustrate the above statements.
Several years ago the Navajo 'l'ribe was talked into giving up over 34,000
acre-feet of its water per year for the cooling of the Page Power Plant genera-
tors. The Tribe will receive nothing for its "waiver" of these rights.
Last summer there was a severe drought. Hundreds of Navajo sheep and
cattle died of thirst. In Phoenix there is a giant fountain which shoots water
500 feet into the desert air as a showpiece.
Thousands of acres of Navajo Nation lands are being, and are slated to be,
stripped for the coal. These leases were all signed years ago with the aid and
comfort of the Bureau of Indian Affairs. I am not speaking only of Black Mesa.
There are many such areas.
~fore thousands of acres are being lost to right of ways for huge electric
transmission line corridors, pipelines and the Black Mesa to Page railroad which
will transport coal, not Navajos.
The pollution from the powerplants will have an, as yet unknown, effect U])On u])on
the health of our people and the health of our land. This may already be oc-
curring in the Shiprock area.
It is unlikely the stripped-over lands will ever be reclaimed in this semi-arid
region. In the east where rainfall is heavy reclamation has not been very suc-
cessful. Should we believe the promises that it will work in the southwest, even
in the lifetime of our grandchildren?
Our beautiful sky is rapidly being obscured by the. pollution from the Four
Corners Power Plant. When all of the plants are in operation the sight of our
four sacred mountains in the distances will be a thing of the past. 'l'o '1'0 replace
Tuberculosis we will !Je lJe given modern lung diseases.
It is popular to hear the strip mines and powerplants defended by state
officials as "economic development" for the Navajos. However, if one takes a
look at the figures themselves, the states stand to gain more economically than
do the Indian Tribes.
For example, the State of Arizona has the following taxes which will be
levied on the Black Mesa strip mine, and the Page Power Plant:
o/o tax on gross sales of all minerals from the mine, and on all elec-
Ilf2 %
1. 1¥2
trical energy sold to consumers.
2. A special 2% excise tax on all sales of coal and electricity, the proceeds
of which go to finance educational programs in Arizona, not for Indian
education.
3. An ad valorem tax on all machinery, equipment, buildings and on the
value of the mine itself, the proceeds of which go to finance county govern-
ments, but not the Navajo Government.
The total benefit in tax revenue from the Black Mesa mine and powerplants
to the State of Arizona is reported in the Environmental Statement prepared for
the project to be 7.5 million dollars per year, or one-half of a billion dollars for
the life of the project. 'rhat's 500 million for the State of Arizona, and 40 million
for the Navajos-we are not fooled that this project has the true interests of
the Navajos at heart.
What about aU aH of the jobs that were promised us'!
us'/ It is certainly true that a
few hundred Navajos are employed by the coal, power and construction com-
panies. Those that have been hired generally receive good. gOOd. wages. However, it is
doubtful that the number of jobs will equal the number of people whose land
and other resources is being taken.
736
At this very time DNA and the Navajo Tribe are working together in attempt-
ing to combat job discrimination in the construction of the Page Plant and its
related facilities. Despite a Navajo preferential employment clause in the con-
tract, employment discrimination is rampant.
The Navajo Nation has been subjected to a form of economic colonialism by
the coal, power and water interests. This has been accomplished with the full
support of the Indian's trustee, the federal government in the form of the BIA.
Today may be a new day. Navajos are learning fast. Our new Tribal Chairman,
Peter MacDonald, and the Navajo Tribal Council have given notice to all that
the old "BIA knows best" days are forever over. The Navajo Nation is deter-
mined to reverse the trends of exploitation.
We need economic development. We must have progress. But the progress that
the Navajo Nation wants and needs is not the progress of pollution. Education
and health services which we control and which meet our needs is progress.
Economic development which eA.-ploits
eA--ploits our resources in a national and beneficial
way to us and not to the outside interests is progress. The swallowing up of our
resources for a few jobs and for token tribal revenues is not true economic de-
velopment or progress for ·the
-the Navajo Nation. This is economic colonialism prac-
ticed from the outside upon the Navajo Nation.
PROBLEJ\IS WITH FOUR CORNERS POWERPLANT
Mr. ZAH. vVell, I think to start off with we've discussed, you know,
some problems with the powerplants, and we've discussed some prob-
lems with the reservation resources. vVhat I would like to do today is
submit a written statement and since I know there's a lot of people
who are on schedule to testify and I would just like to make a few com-
ments about the written material that I made for the subcommittee.
The material mainly deals with the powerplant problems and the raw
deal I think the NNavajos
a va jos have received.
Mr. MacDonald just referred to the benefits that the States were
getting from these powerplants and we have done some research over
at DNA. It revealed that all the tax revenues and the benefits that
the States are getting from these powerplants, the ratio is for every
the State of Arizona is receiving something like $7.50 for every dollar
theN
the Navajo
avajo Tribe gets. Today we talk about economic development and
trying to develop the reservation. I just don't see this thing happening
here. From the strip mining that we have seen this morning, the power-
plant that we have visited this morning, where Navajo water is being
depleted, I think what we're really doing is getting rid of our resources
as far as possible in the name of economic development.
My paper is bringing some of these issues out so that the subcom-
mittee can have it at its disposal when they have more time to go over
these things. I think Mr. MacDonald gave a very good report here
and I think the days where the Bureau is controlling the destiny of
the tribe is gone. I think, as he has stated this morning, that we will
see new days
clays where the Navajos will try and regain, and the Navajos
will retain some of the resources that are rightfully theirs. I have
nothing but praise for the present administration of the Navajo Tribe.
As far as the Peabody Coal Co. lease contract is concerned, I hope
that it has seen its last days, and I think we will get more benefits from
a new contract. Again, I have nothing but praise for the present
administration.
Ben Hanley, from the DNA legal services program, who is with
me here to mv right, is the first Navajo lawyer. Being a lawyer and
having been working with lawyers for 3 years, he's a typical lawyer
and I'll have him expound on what he has written. It seems like the
737
human nature with lawyers is that they like to talk. So I don't think I
should talk for him. Let him express his own views.
Senator KENNEDY. Sometimes lawyers can do that.
Mr. HANLEY. Maybe I should mention that I'm Navajo first and a
lawyer second and that way I'll limit my talk. Really what I have
here is a testimony that is written. It is a paper that was done in my
third year of law school and deals with Indian water rights, the basis
for the water rights, and with the extent of the Indian water rights.
Senator KENNEDY. If I£ we could receive that, ·we'll
'we'll make it part of
the record.
(Mr. Hanley's paper follows:)
INDIAN 'VATER
INDIAN 'YATER RIGHTS
(Submitted by Ben Hanley, Dinebeiina Nahiilna Be Agaditahe, Inc.,

"rindow
"
1
indow Rock, Ariz., January 1972)
TABLE OF CoNTENTS
TABLE CONTENTS
I. BASIS OF INDIAN
INDIAN W ATEB
ATEB RIGHTS
A-General
B~Common Law Basis
C-Constitutional Basis
D-Treaty Basis
E-Statutory Basis
EXTENT OF INDIAN
II. EXTENT 'V ATE~ RIGHTS
INDIAN 'Y
III. CONCLUSIONS AND
III. AND RECO~[MENDATlONS
RECO~lMENDATIONS
IV. TABLE
IV. TABLE OF AUTHORITIES
AUTHORITIES CITED
INDIAN WATER RIGHTS

INDIAN
I. BASIS OF INDIAN WATER RIGHTS

A.. General
The fundamental basis of most Indian water rights is found in the tenure by
which Indian land is held. Indian water rights are generally of federal origin
either through grant, implied reservation or recognition of sovereignty and
have remained largely subject to federal jurisdiction and protection. They gen-
erally involve rights that were never vested in the several states or were ever
subject to state jurisdiction.
The rights never having been vested in the several states or subject to their
jurisdiction are generally independent of the doctrinal constraints of either
riparianism or prior appropriation. Although neither of the doctrines are con-
trolling as a matter of law in defining Indian water rights, some of the concepts
inherent in those doctrines such as reasonable use in the case of riparian doc-
trine, have been applied in defining the limits of those rights.
A further consideration referenced earlier is the sovereign status of Indian
tribes. This status was aptly described in The Cherokee Nation v. The State of
Georgia, 30 U.S. (5 Pet.) 1 (1831) as being that of "dependent Nations," a char-
acterization that has been made many times subsequently. This would seem to
imply, that among other exercises of sovereignty that tribes could develop their
own particular system of determining and regulating water rights-subject to
federal regulation, but independent of any state regulatory pattern as to rights
or utilization.
B. Common law basis
The legal basis of most Indian water rights are largely based on judicial in-
terpretation of treaties, statutes and decisional law rather than by express grant.
During the treaty period which concluded in 1871, water rights were rarely men-
tioned and neyer
neYer clearly defined. This unfortunate historic pattern continued
during the subsequent Executive Order period (1871-1919) and the period since
1919 in which congressional action has been necessary to establish Indian land
reserves.
738
Reservation boundaries, Indians eligible for residency and the broad purposes
for reservation establishment are generally well defined. The exact property
rights conferred. except as to negative aspects such as restrictions on alienation
are rarely specified. As a result, courts have had to develop Indian water rights
by implication. Many of the defined purposes of the reserves such as permanent
habitation, agriculture, hunting and fishing, and the raising of livestock would
not be possible without a reservation of water sufficient to effectuate the intent
of the federal government in establishing the reserve.
Another source of authority which the courts have used to develop the doctrine
of implied reservation of Indian water rights is congressional intent as ex-
pressed through the appropriation process. Substantial appropriations to de-
velop and maintain Indian irrigation projects, range water developments and
other forms of agricultural development programs having been passed by Con-
gress over the years, the courts have read in a congressional intent that an
adequate supply of water was available for which development funds were ap· ap-
propriated and which Congress intended to be reserved for the Indian bene-
ficiaries.
As was stated in the leading case on Indian water rights, Winters v. United,Unitea
States, 207 U.S. 564 (C.C.A. 9) (1908) which involved the diversion of water
upstream from a reservation so as to adversely affect the Indian interests:
interests :
"The reservation was a part of a very much larger tract which the Indians
had the right to occupy and which was adequate for the habits and wants
of a nomadic and uncivilized people. It was the policy of the Government,
it was the desire of the Indians, to change those habits and to become a
pastoral and civilized people. If they should become such the original tract
was too extensive, but a smaller tract would be inadequate without a change
of conditions. The lands were arid and without irrigation, were practically
valueless. And yet, it is contended, the means of irrigation were deliberately
given up by the Indians and deliberately accepted by the Government."
The Winters Doctrine which established reserved water rights as the property
of the Indians to be protected by the federal government was followed in
Gonraa Go. v. United,
Conrad, Inv. Co. Unitea States, 161 Fed. 829 (C.C.A. 9) (1908) which stated:
"This court affirmed the decree in the Winters casc,
case, holding that the United
States, by treaties with the Indians on the reservation, had impliedly re-
served the waters of Milk River for the benefit of the Indians on the reserva-
tion to the extent reasonably necessary to enable them to irrigate their lands,
and that gNntees and settlers on public lands outside of their reservation
could not acquire, under the desert land laws of the United States or the
laws of the State of Montana relating to the appropriation of the waters
of Milk River to the prejudice of the rights of the Indians residing upon
that reservation. * * >I< * The law of that case is applicable to the present
case, and and determines the paramount rights of the Indians of the Black-
foot Indian reservation to the use of the waters of Birch Creek to the extent
reasonably necessary for the purposes of irrigation and stock raising, and
domestic and other useful purposes. The government has undertaken, by
agreement 'with the Indians on these reservations, to promote their improve-
ment, comfort, and welfare, by aiding them to become self-supporting as a
peaceable and agricultural people. The lands within these reservations are
dry and arid, and require the diversion of waters from the stream to make
them productive and suitable for agricultural, stock-raising, and domestic
purposes."
An attempt to limit the holding of Winters to treaty reservations was reversed
Unitea States v. Walker River Irrigation Di8trict,
in United, District, 104 F. 2d 334, (C.C.A.9),
(C.C.A. 9),
(1939) in which it was stated:
Unitea States distinguishable, as being
"The trial court thought Winters v. United,
based on an agreement or treaty with the Indians. Here there was no treaty.
It said that at the time the \Valker River reservation was set apart, the
Paiutes were at war with the whites, hence no agreement between them and
the Government was possible.... (a) In the \Vinters case, as in this, the
basic question for determination was one of intent-whether the waters of
the stream were intended to be reserved for the use of the Indians, or
whether the lands only were reserved. We see no reason to believe that the
intention to reserve need be evidenced by treaty or agreement. A statute or
an executive order setting apart the reservation may be equally indicative
of the intent. 'Vhile in the 'Vintel"s
'Vinters case the court emphasized the treaty,
there was in fact no express reservation of water to be found in that docu-
ment. The intention had to be arrived at by taking account of the circum-
739
stances, the situation and needs of the Indians and the purpose for which
the lands had been reserved."
It is interesting to note that although the term riparian rights is not used in
the decisions, the basic determinations involve largely riparian concepts:
(a) The Indian water rights involved irrigable riparian land with appur-
tenant water rights.
(b) Land that is generally in a common ownership status or under
alienation restrictions that prevents partition which under riparian doctrine
would mean a loss of water rights on the severed portion.
(c) A domestic and agricultural use pattern that fits the reasonable use
(0)
requirement.
(d) The quantity of the water to be reserved for the Indians is often not
specified-merely the uses.
The significant variance would appear to be that prescriptive rights can not
be acquired against the Indian water interests as they generally can be against
private riparian interests.
The most recent landmark case in Indian water rights, Arizona v. California,
373 U.S. 546 (1963), reaffirmed the Winters Doctrine and stated:
"'Vinters has been followed by this Court as recently as 1939 in United States
"'Yinters
v. Powers, 305 U.S. 527, 59 S, Ct. 344, 83 L.Ed. 330. We follow it now and agree
that the United States did reserve the water rights for the Indians effective as
of the time the Indian reservations were created. This means as the Master held,
that those water rights, having vested before the Act became effective on June 25,
1929, are 'present perfected rights' and as such are entitled to priority under the
Act.
"'Ve also agree with the Master's conclusion as to the quantity of water
"'Ye
intended to be reserved. He found that the water was intended to satisfy the
future as well as the present needs of the Indian Reservations and.ruled that
enough water was reserved to irrigate all the practicably irrigable acreage on
the reservations. Arizona, on the other hand, contends that the quantity of
water reserved should be measured by the Indians reasonably forseeable needs,
which, in fact means by the number of Indians. How many Indians there will be
can only be gues~ed. 'Ve have concluded, as did the Master, that the only feasible
and fair way by which reserved water for the reasons stated can be measured is
irrigable acreage."
Arizona's posiion was that if any implied reservation of water rights for
Indians existed, that the amount should be based on Indian. population rather
than Indian acres and that the basic technique to be used in allocation would be
the judicial doctrine of equitable apportionment, which of course favors existing
development. Arizona in effect was seeking a judicial double standard for ad-
judication of water rights. California, her adversary in the general proceedings
was advocating equitable apportionment as the proper measure for the alloca-
tion of water a position which Arizona was strenuously opposing.
A very significant case, U.S. v. v. .Ahtanum
Ahtanum Irrigation District, 236 F2d. 321,
(C.C.A. 9) (1956) aspects of which were litigated as late as 1964, 330 F2d. 899,
(C.C.A. 9) (1964) determined a number of issues regarding the extent of Indian
property rights in water:
"Rights reserved by treaties between Indians and United States are not
subject to appropriation under state law and the state has no right to dispose
of them.
"The United States in bringing suit on behalf of Indian tribe to quiet title
to Indian's alledged rights to water is not subject to the defenses of laches or
estoppel.
"Transferees of fee patented Indian allotment acquired a vested interest
in and right to distribution of waters diverted by United States and Indian
tribe, to same extent as if the lands were still in the possession of the
original allottees.
"The assertion that any reservation of waters for the benefit of the
Indians must be limited to the quantity actually used beneficially within
some period which the court might find to be a reasonable time limitation
would terminate in 1908. We find no basis for this. We deal here with the
conduct of the Government as trustee for the Indians.
"It is not for us to say to the legislative branch of the Government that
Congress did not move with sufficient speed to appropriate the funds neces-
sary ... or that the Government had thus lost or forfeited the rights reserved
for the Indians."
740
The exact property right that exists in water is generally held to be usufruc-
tuary i.e. the right to use water rather than the right to own the corpus outright.
'rhis
'£his is a carry-over to the common law from the civil law of Spain and France.
Although the right to use rather than own outright may be of small moment to
a senior appropriator whose land is fuNy developed and thus in possession of
protected rights, the Indian land owner whose land is not fully developed or is
undeveloped would be stripped of a valuable property right is subject
<subject to either
of the state systems. To protect and preserve this right, the holding in Ahtanum
Irrigation District that water rights were appurtenant to the land itself and were"
were.
conveyed in a fee patent when the land went out of Indian trust status is im-
portant.
In addition recognizing a vested right in water, the several holdings indicate
that the rights may not be lost through prescription, failure to utilize fully, or"
or·
other potential risks faced by non-federal
non-federallandowners.
landowners.
O. Constitutional
0. Oonstitutional basis
The Constitutional Basis for the federal regulation of Indian Affairs is found
in Section 8 of Article I which states:
"The Congress shall have Power ... To regulate Commerce with foreign
Nations and among the several States, and with the Indian Tribes;"
and Section 2 of Article II which in defining the duties of of.the
"the President states:
"He shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present concur;"
and the inclusive final clause of Section 8 of Article I which states, in enu-
merating the Powers of Congress:
"To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this Con-
stitution in the Government of the United States, or in any Department or
Officer thereof."
The customary Constitutional authority for negotiations with Indian tribes
prior to 1871 was the above cited treaty power of the President. Following the
change in policy that terminated the so-called treaty period in Indian Affairs,
the Commerce Clause became the usually cited Constitutional authority for
regulating Indian affairs. In 1886, the adoption of a criminal code for Indians
under the Commerce Clause was challenged. The Supreme Court while agreeing
that the Commerce Clause was not appropriate authority sustained the act and
stated:
"From their very weakness and helplessness, so largely due to the course
of dealings of the Federal Government with them and the treaties in Which which
it has been promised, there arises the duty of protection, and with it the
power. This has always beetu recognized by the Executive and by Congress
and by this Court, whenever the question has arisen. * * ..* The power of
the General Government over these remnants of a race once powerful, now
weak and diminished in numbers, is necessary to their protection, as well
d•well. It must exist in that government, because it
as among whom they d'well.
has never existed anywhere else, because the theatre of its exercise is within
the geographical limits of the United States, because it has never been
denied, and because it alone can enforce its laws on all the tribes." U.S. v.
I(agama, 118 U.S. 375 (1886).
J(agama,
The Kagama holding indicates:
1-A
I-A unique Indian trust relationship exists that has been recognized and
accepted by the several arms of the federal government.
2-The property rights of Indians have never been subject to state juris-
diction.
3-Indian property rights exist as a matter of original sovereignty recog-
nized by treaty. In consideration for certain concessions, the federal govern-
ment undertook a responsibility to protect the retaJned Indian property
rights.
These were some of the fundamental principles which were defined in Winters
some 20 years later.
A significant Constitutional issue that exists in the recognition of Indian water
rights is that a substantial number of Western States follow the so-called Colo-
rado Doctrine which claims that all •water
'water rights subject to appropriation derive
from the State and no rule but that of prior appropriation (and presumeably
fulfillment of the particular state administrative requirements for recordation
of water rights) is in effect to secure rights. Several of the Colorado Doctrine
741
states (Wyoming and Colorado) also base their State sovereignty theory re-
garding water rights on the fact that their constitutions as ratified by Congress
prior to their admission to the Union, declared that waters within the state were
the property of the State and rejected the riparian system. According to Weil 1
the states following this doctrine include Alaska, Arizona, Colorado, Idaho,
Nebraska (partially), Nevada, New Mexico, Oregon (partially), Texas (par-
tially), Utah and Wyoming.
The Colorado Doctrine is that water rights are a question of local law, becom-
ing such by a possible construction of Federal statutes (such as the Desert
Land Act of 1877, 19 Stat. 377), but which is inconsistent with the legislative
history of these statutes. An alternate rationale is that the matter is one of
State sovereignty regardless of Federal statutes.
As noted by Weil, cited supra, in the 3rd Edition of his classic on water law
published in 1911, in commenting on the alternate rationale . . ." a position
which the courts following the California Doctrine (recognition of federal pro-
prietorship) have attacked as open to constitutional objections, but which (with-
out considering the objections) finds favor in the most recent decisions of the
Supreme Court of the United States and is found in some recent expressions of
the California court itself. The recent decisions of the Supreme Court of the
United States, the great value of property in the arid States relying upon the
Colorado Doctrine, and the State administrative systems which have become
established, leave no doubt that the system has come to stay, so far as it concerns
rights between private persons, in any State that has today adopted it; but a cer-
tain qualified reservation of Federal proprietary rights, so far at least as is
necessary to the beneficial uses of government property, and for Indian reser-
vations, is still steadily asserted in the United States Supreme Court's decisions,
and the recent discussion of the policy of conservation has revived the assertion
of Federal proprietary right.
Weil's opinion regarding the viability of the Colorado Doctrine (in spite of
its doctrinal limitations) was well-founded. The Supreme Court in 1935 held in
interpreting the Desert Land Act provision which states:
"All surplus water over and above such actual appropriation and use,
together with the water of all lakes, rivers and other sources of water supply
upon the public lands and not navigable, shall remain and be held free and
for the appropriation and use of the public for irrigation, mining and manu-
facturing purposes subject to existing rights."
As meaning that, " . . . Congress intended to establish the rule that for the
future the land should be patented separately; and that all non-navigable waters
thereon should be reserved for the use of the public under the laws of the states
and territories named." California-Oregon Power Go. v. Beaver Portland Cement
Go., 295 U.S. 142, 55 S.Ct. 725, 79L.Ed. 1356; followed in Ickes v. Fom, 300 U.S.
82, 57S. Ct. 412, 81 L.Ed. 525 and recently in Federal Power Commission v.
Oregon, 349 U.S. 435, 75 S.Ct. 832, 99 L.Ed. 1215 (1955).
The other premise of Wiel's regarding federal proprietary rights was sup-
ported in the holding of Arizona v. California, 373 U.S. 601, 83 S.Ct. 1498, 10
L.Ed. 578 (1!)63) which stated:
"The Master ruled that the principles underlying the reservation of water
rights for Indian Reservations was equally applicable to other federal estab-
lishments such as National Recreation Areas and National Forests. We
agree with the conclusions of the Master that the United States intended to
reserve water sufficient for the future requirements of the Lake Mead
National Recreation Area, the Havasu Lake National Wildlife Refuge, the
Imperial National Wildlife Refuge, and the Gila National Forest.
D. Treaty basis
Although the treaty method of defining Indian property rights terminated in
1871 (16 Stat. 566) a number of obligations were assumed and rights recognized
that are still valid and relevant today. Although rarely were rights to water
mentioned specifically, the recognition of sovereignty and the broad wording of
treaties such as that with the Wyandottes (7 Stat. 49), (1795) which stated in
Article IV:
"In consideration of the peace now established and of the cessations and
relinquishments of lands made in the preceding article ... the United States
1 Wlel, Water Rights In the Western States, 3rd ed., Vol. 1, Sec. 186 p, 226.
70-515-72-pt. 3--3
742
relinquish their claims t.o to all .other
other Indian lands n.orthward
northward .of of the river
Ohio,
Ohi.o, eastward .of of the Mississippi and southwards.outhward of the Great Lakes and
the waters uniting them, according t.o to the b.oundary
boundary line agreed in by the
United States and the king .of of Great Britain, in the treaty .of of peace made be-
tween them in the year 1783."
The term "relinquishment" was specifically defined in the subsequent article
as follows:
f.oll.ows:
"The Indian tribes wh.o who have a right t.o to these lands, are quietly to enj.oy enjoy
them hunting, planting, and dwelling thereon there.on sos.o l.ong
long as they please ... "
And then it was stated that if the lands were subsequently s.old sold they c.ould
could
only be sold
.only s.old t.o
to the United States.
The treaty with the P.ottawat.omi
Pottawatomi Nation Nati.on (9 Stat. 853), (1846) stated in
Article 4:
"The United States agrees t.o to grant t.o to the said united tribes .of of Indians
possession and title t.o
p.ossessi.on to a tract .ofof parcle .of of land ..." and t.o to guarantee the
full and c.omplete
complete p.ossessi.on
possession .ofof the same to the P.ottawat.omi
Pottawatomi Nation,
Nati.on, parties
to the treaty as their land and h.ome
t.o home forever;".
f.orever ;".
A rather interesting treaty that inv.olves involves substantial Indian rights was the
Treaty .of of Guadalupe Hidalg.o
Hidalgo (9 Stat. 922,930),
922, 930), (1848) which affeeted the pr.op- proP-
erty interests
interests.of of many Indian tribes in the present states.of states of Arizona, New Mexic.o,
Mexico,
Nevada and Calif.ornia.
California. Secti.on
Section IX .of of the referenced treaty as executed stated:
"Mexicans wh.o,who, in the territ.ories
territories af.oresaid,
aforesaid, shall n.ot not preserve the char-
acter .ofof citizens .of
of the Mexican Republic. conformably
c.onf.ormably with what 1-s i-s stipu-
lated in the preceding article shall be incorporated inc.orp.orated into the Uni.on
Union .of of the
United States and be admitted, at the pr.oper proper time (t.o (to be judged by the
Congress .of
C.ongress of the United States) t.o to the enj.oyment
enjoyment .of of all the rights .of
of citizens
.of
of the United States acc.ording
according t.o to the principles .of of the C.onstituti.on
Constitution;;
"And in the meantime shall be maintained and pr.oteeted proteeted in the free
enjoyment .of
enj.oyment of their liberty and pr.operty,
property, and secured in the free exercise
.of
of their religi.on
religion without
with.out restriction."
restricti.on."
As a result .of of s.ome
some feeling that the w.ordword "Mexican" might n.ot not include Indians,
in the ratificati.on
ratification by the Senate a substitution
substituti.on was made .of of the language .of of the
Hid Article .of
HId of the Treaty .ofof L.ouisiana
Louisiana which read:
"The inhabitants .of of the ceded territ.ory
territory shall be inc.orp.orated
incorporated in the Uni.on
Union
.of
of the United States and admitted as soon s.o.on as p.ossible,
possible, acc.ording
according t.oto the prin-
ciples .of
of the Federal C.onstituti.on,
Constitution, t.o to the enj.oyment
enjoyment .of of all the rights, ad-
vantages, and immunities .of of citizens .ofof the United States; and in the mean-
time they shaH be maintained and pr.oteeted proteeted in the free enj.oyment
enjoyment .of of their
liberty, pr.operty
property and the religi.on
religion which they pr.ofess".
profess". (8 Stat. 200).
The legislative hist.ory
history sh.ows
shows that the substitution
sUbstituti.on .ofof the w.ord
word "inhabitants"
in lieu .of of "Mexicans" was s.olelysolely for
f.or clarification purp.oses
purposes and n.o no other affect
.on
on the rights .of of the affected parties was intended by the change. As stated .on on
page 381 .of of V.olume
Volume 5 in "Treaties and Internati.onal
International Acts .of of the United States"
by Miller:
"The American G.overnment
Government by suppressing the IXth Article .of of the Treaty
.of
of Guadalupe Hidalg.o
Hidalgo and substituting the IIId HId Article .of of the Treaty .of of
Louisiana, did n.ot not intend t.oto diminish in any way what was agreed up.on upon by
the af.oresaid
aforesaid article IX in favor fav.or .of
of the inhabitants .of of the territ.ories
territories ceded
by Mexic.o.
Mexico. Its understandings is that all .of of that agreement is c.ontained
contained in
the IIId
HId Article .of of the Treaty of L.ouisiana.
Louisiana. In consequence all the privileges
and guarantees, civil, p.olitical,
political, and religi.ous,
religious, which w.ouldwould have been p.os- pos-
sessed by the inhabitants .of of the ceded territ.ories,
territories, if the IXth article .of of the
Treaty had been retained will be enjoyed enj.oyed by them, with.out
without any difference,
under the article which has been substituted."
The rights that may be present under this auth.ority authority could
c.ould date from
fr.om the 15th
and 16th centuries and inv.olve involve riparian rights devel.oped
developed under Spanish civil law
as m.odified
modified by whatever appr.opriati.on
appropriation glossgl.oss might have ev.olved
evolved in the new w.orld.
world.
E. Statutory basi8
basis
The statutory basis from
fr.om which Indian water rights have been claimed by
implication .or
implicati.on or express grant include auth.orizati.on
authorization legislation.
legislati.on. such as 32 Stat. 388
which states:
"That in carrying .out
out any irrigati.on
irrigation enterprise under the pr.ovisi.ons
provisions .of
of
the reclamation act .of of June seventeenth, nineteen hundred and tw.o, two, find
nnd
which may make p.ossible
possible and pr.ovide
provide f.or,
for, in c.onnecti.on
connection with the reclamati.on
reclamation
.of
of .other
other lands, the reclamati.on
reclamation .ofof aU
all or
Dr any p.ortion
portion .of
of the irrigable lands
743
on the Yuma and Colorado Indian Reservations in California and Arizona,
the Secretary of Interior is hereby authorized. * ..* *"
And appropriation of legislation such as 34 Stat. 333 which states:
"For the construction of an irrigation system necessary for development
and furnishing a water supply for the irrigation of the lands of the Pima
Indians in the vicinity of Sacaton, on the Gila River Indian Reservation,
two hundred and fifty thousand dollars, to be expended under the direction
of the Secretary of the Interior. * ..* *"
And where land from the public domain is not available or suitable for agri- agri·
culture and must be purchased, combined .authorization and appropriation leg-
islation such as 33 Stat. 333 which provided for the Indians of California
California::
"That the Secretary of the Interior be, and he is hereby, authorized to> to
expend •* ..* * to purchase for the use of the Indians in California now residing
on reservations which do not contain land suitable for cultivation,
"And for Indians who are not now upon reservations in said State, suitable
tracts or parcels of land, water and water rights in such State of California,
and have constructed the necessary ditches, flumes, and reservoirs for the
purpose of irrigating said lands, and the irrigation of any lands now oc-
cupied by Indians in said State . . . "
And legislation such as 34 Stat. 355 which concerned the establishment of
individual Indian allotments and the sale of surplus land for the benefit of the
Flathead Indians tribal membership:
membership :
"That nothing in this act shall be construed to deprive any of said Indians,
or said persons or corporations to whom the use of land is granted by the
Act, of the use of water appropriated and used by them for the necessary
irrigation of their lands or for domestic use or any ditches, dams, flumes,
reservoirs constructed and used by them in the appropriation and use of
said water."
A few statutes exist such as 25 Stat. 088, which implemented a general treaty
obligation. It involved the establishment of an irrigation system including reser-
voirs and sta stated
ted::
"Ths
''Ths land susceptible of irrigation under the system herein provided and
owned by Indians in severalty or in common shall be deemed to have a right
to so much water as may be required to irrigate said lands, . . . "
The general statutory authority for the expenditure of appropriations by the
Bureau of Indian Affairs, 42 Stat. 208, 25 U.S.C. 13, states as one of the principal
purposes for which Congress will from time to time appropriate funds:
"For extension, improvement, operation, and maintenance of existing
Indian irrigation systems and for development of water supplies."
The Indian Reorganization Act, 48 Stat. 985, 25 U.S.C. 465, authorizes the
Secretary of the Interior to acquire:
acquire :
""*.....
" * water rights, or surface rights to lands within or without existing
reservations ......* * * for the purpose of providing land for Indians."
A number of Indian tribes were terminated from federal trust jurisdiction
during the 1950's. A rather universal clause in the individual tribal termination
legislation stated:
stated :
"Nothing in sections---
sections - - - of this title shall abrogate any water rights of
a tribe or its members." 68 Stat. 722; 68 Stat. 877; 68 Stat. 1103; 70 Stat.
896; 70 Stat. 965.
The Act of August 15, 1953, 67 Stat. 589, as amended, 28 U.S.C. Sec. 1360 com-
monly referenced as Public Law 280 granted civil jurisdiction over Indians in
Indian country to a number of states. Section 1360(b) of this act stated:
"Nothing in this section shall authorize the alienation, encumbrance, or
taxation of any real or personal property, including water rights, belonging
to any Indian or any Indian tribe, band, or community that is held in trust
by the United States or is subject to a restriction against alienation imposed
by the United States, or shall authorize regulation of the use of such prop-
erty in a manner inconsistent with any Federal treaty, agreement, or statute
or with any regulation made pursuant thereto; or shall confer jurisdiction
upon the state to adjudicate, in probate proceedings or otherwise the owner-
ship or right to possessions of such property or any interest therein."
This statutory protection with its implied recognition of existing Indian water
rights was retained in 82 Stat. 77,25 77, 25 U.S.C. 1321(b) and 25 U.S.C. 1322 (b) the
so-called Indian Civil Rights Act or of 1968 which amended Public Law 280 in a
number of important areas.
744
II. EXTENT OF INDIAN WA.TEB BIGHTS
The economic significance of Indian water rights can be shown by the following
elemental statistics; of 9.9 million acres of irrigable land serviced by federal
reclamation projects in 1968, 468 thousand acres were Indian lands.• The Indian
lands which were being irrigated, but were not included in a federal reclamation
project constituted 148,000 acres during the same year. The Indian acreage ca-
pable of being irrigated (including that presently being irrigated) consists of
approximately 3 million acres.•
An aspect that is generally not covered in the cases, but which is quite im-
portant from the standpoint of the economic interests of the Indians, is the
extent to which their water rights are transferable in gross or useable for other
than what traditionally have been considered the uses for which Indian water
rights were considered reserved i.e. domestic, livestock and agricultural. The
same broadening of view should be evolved that has occurred in the concept of
beneficial uses under the appropriation doctrine. The present and future reser-
vation economics require the same flexibility in development and utilization of
their resources as off-reservation economics.
The Special Master in Arizona v. California, 373 U.S. 601, 83 S. Ct. 1498, 10
L.Ed. 578 (1963) stated on pages 265-266 of his report as follows:
"The Amount of water reserved for the five Reservations, and the water
rights created thereby, are measured by the water needed for agricultural,
stock and related domestic purposes.
"The reservations of water were made for the purpose of enabling the
Indians to develop a viable agricultural economy; other uses, such as those
for industry, which might consume substantially more water than agricul-
tural uses, were not contemplated at the time the Reservations were created.
Indeed, the United States asks only for enough water to satisfy future agri-
cultural and related uses. This does not necessarily mean, however that
water reserved for Indian Reservations may not be used for purposes other
than agricultural and related uses. The question of change in the character
of use is not before me. I hold only that the amount of water reserved, and
hence the magnitude of the water rights created is determined by agricul-
tural and related requirements, since when the water was reserved that
was the purpose of the reservation.
"The water rights established for the benefit of the five Indian Reserva-
tions and enforced in the recommended decree are similar in many respects
to the ordinary water rights recognized under the law of many western
states. They are of fixed magnitude and priority and are appurtenant to
defined lands. They may be utilized regardless of the particular user. Thus
Congress has provided for the leasing of certain Reservation lands to non-
Indians, and these lessees may exercise the water rights appurtenant to the
leased lands. Skeem v. United States, 273 Fed 93, 96 (9th Circ. (1921). The
measurement used in defining the magnitude of the water rights is the
amount of water necessary for agricultural and related purposes because
this was the initial purpose of the reservations, but the decree establishes
a property right which the United States may utilize or dispose of for the
benefit of the Indians as the relevant law may a:llow."'
The ~:laster's report defined the basis upon which the quantum of water allo-
cated to the Indians was calculated and allocated i.e. 'the amount of water
necessary for agricultural and related purposes" with a priority as of the time
the reservations were established. A further definition of the right involved
appurtency to defined lands. This more clearly defined the water rights involved
than most prior cases, but still left the following issues for future determination:
1. How liberal will the phase be interpreted that states, " * * * the decree
establishes a property right which the United States may utilize or dispose
of for the benefit of the Indians as the relevant law may allow * * *"?
2. "What quantity of water may the Indians beneficially use for non-agricul-
tural purposes? The allocations are based on a quantity of water and an
irrigable acreage each limiting the other. Thus on page 267 of the Master's
report cited supra, the following conclusion of law is stated:
• Federal Reclamation Projects, 1968 Orop Report and related datar-Bureau of Recla-
mation. U.S. Govt. Printing Office, 1969.
•Irrigation Land Data Report, Calendar Year 1968-Bureau of Indian Affairs.
• Special Master's report, Arizona v. California et al, Simon H. Rlfkind-Special Master
(Dec. 5, 1960).
745
"For the benefit of the Chemehuevi Indian Reservation, the United States
has
bas the right to the annual diversion of a maximum of 11,340 acre-feet of
water from the Colorado River, or Or to the quantity of mainstream water
necessary to supply the consumptive use required for irrigation of 1,900 acres
and for the satisfaction of related uses, whichever is less, with a priority ofot
February 2, 1907."
(The wording of the allocations of water to the other reservations involved is
similar.)
Obviously, the Chemhwevi's do not have rights to water in excess of 11,3:10 acre-
feet or to irrigate more than 1,900 acres. But what if they wish to irrigate only
950 acres and only consume 4,000 acre-feet in the process (Le. (i.e. exceed the Master's
projections through good conservation practices or changes in technology). Does
this entitle them to use the additional 7,340 acre-feet for non-agricultural pur-
poses? Must they accept a proration of their maximum water allocation based on
the acreage actually irrigated and the average per acre utilization i.e. an alloca-
tion of 8,000 acre feet? Or do they only have a right to the water actually utilized
i.e. 4,000 acre-feet in the hypothetical example.
Unfortunately, the Master declined to make findings on the question of the
extent of the l:ldian
bdian rights to water for non-agricultural purposes although he be
stated on page 265 of his report cited supra:
"This does not necessarily mean, however, that water reserved for Indian
Reservations may not be used for purposes other than agricultural and
related uses. The question of change in the character of use is not before
me."
This failure to consider the issue justifiable was undoubtedly due to the failure
of the'
the· United States to claim in its pleadings Indian rights to water for other
than "future agricultural and related uses". 'rhe 'fhe Master was correct from a pro-
cedural standpoint, the issue not having been raised in the pleadings, but from
the standpoint of determining the extent of the Indian water rights in this area
it was unfortunate that the issue was not litigated.
The principal basis upon which the quantum of Indian water rights have been
determined in the several cases litigated include:
(a) The "irrigable
''irrigable acre" basis used in Arizona v. California (1963).
(b) The "actual experience" basis of United States
State8 v. Walker River Irr.
District (1939).
The latter view evaluates the right in terms of the actual historical use pat-
tern i.e.
Le. the utilization actually experienced. The first method is a measure or a
definition of potential utilization and mayormay or may not have a realistic basis.
Each technique has its limitations and should not be universally applied. A
limited analysis of the two methods is as follows:
follows :
(1) Irrigable acres (Arizona v. California)
(a) l\fakes
Makes an equitable allocation that permits future development on reser-
vations whose potential was never realized (quite
(quite' often due to efforts of non-
Indian beneficiaries of the status quo).
(b) It provides an amount of water that can be estimated with some ac-
curacy; will meet the immediately foreseeable utilization requirements i.e.Le. agri-
culture and domestic; and will meet many, if not most municipal and industrial
requirements.
Industries such as paper mills that use extraordinary quantities of water
could not be satisfied, but the problem of relating back such uses to the purposes
for which reservations were established (which is a common rationale of the
implied reservation of water doctrine) and which gives priority would be tenuous.
Disadvantages
(a) The projected potential usage of the water claimed may never be realized
on the reservation and the development of the off-reservation areas may be in-
hibited as the result of the unused allocation. (This disadvantage could be over-
come however by permitting Indian water right leases for sufficient periods to
reasonably amortize investments. This would enable the Indians to acquire addi-
tional capital and if Indian land in addition to water rights were involved, a
reversionary interest in the improvements).
(2) Actual Experience (United State8 v. Walker River Irr. Di8trict)
DiBtrict)
(a) The amount of water actually being used and that has historically been
used and which as the result of full development of the areas and relative popu-
746
lation stability will continue to be used is allocated. Other users on the water-
shed who have acquired rights over the years are not significantly adversely
affected.
(b) The water made available meets the reasonable and proven needs of the
Indian population.
(c) Eliminates speculation as to future needs by basing the estimate on past
(but presumably currently relevant) requirements .
.Di~advantaveq
~a) A significant use and predictable development pattern must have evolved
which has not been the case on most Indian lands.
(b) A reservation of Indians is intended to provide the basic means of sus-
taining an existing Indian population as well as meet the needs of subsequent
;generations. It is a more complex situation than developing a reasonable alloca-
:tion based on the historical usage pattern of an individual appropriator. By
making water rights appurtenant to and correlated with reserved irrigable land
TathE'r than existing populations, reasonable allowance will be made for poten-
tial developments in agriculture and industry as well as population expansion.
If the population exceeds the capacity of the land base, provision must be made
for either relocation of part of the population or expansion of the land base
through acquisition of additional land (])Ossessing appurtenant water rights).
In any event, the best that the experience measure can generally provide is a
measure of the past, by definition it is not based on future considerations. It has
value only to the extent past experience is correlated with and relative to future
requirements. As indicated above, the rights of private individual appropriators
are based on their actual historic usage patterns in relation to other users and
the available water. The water rights of Indians are based on their present and
future needs not their past usage, although occasionally the two might coincide.
The Special Master in Arizona v. California recognized the problem area
herein discussed in his rejection of Arizona's proposal of Indian water rights
based on Indian population when he stated on page 26H of his report:
"Arizona seems to envisage that the United States intended to create
water rights in gross which would fluctuate in magnitude as the Indian popu-
lation and needs fluctuated, the water right being measured by the amount
of water needed at any particular time by the Indians actually inhabiting
a particular Reservation . . . . But even if Arizona were correct in her con-
tention, the most feasible way to give full effect to the water rights created
by the United States, as Arizona defines them, would be to decree to each
Reservation enough water to irrigate all the practicably irrigable acreage.
It is clear that the water rights of the five Reservations in question cannot
be fixed at present uses for this would defeat the basic purpose of reserving
water to meet future requirements. Even if, as Arizona claims, the reserva-
tion of water was in gross for Indians and not Reservation lands, the Indians
needs may well increase in the future and these increased needs would have
to be provided for."
A somewhat dated (in lieu of Arizona v. Oalifornia-1960) but none the less
informative and analytical law review article • on Indian water rights raises
among other issues the fact that the term "irrigable acres" while commonly used
in decisions involving the extent or measure of Indian water rights has never
been clearly defined and that the Babcock definition of "irrigable land" (9 Alta.
270, 27 D.L.R. 4H2) (1916) which requires:
(1) Land physically capable of being watered by gravity flow from irriga-
tion works.
(2) The presence of suitable edaphic and climatological factors.
(H) Technical competency in the selection of crops and application of
techniques on the part of the irrigators of the land so classified.
is not met or perhaps is not wholly applicable to many Indian irrigation situa-
tions, but that no other meaningful standard exists in its place.
The authors whose lack of objectivity is only exceeded by their love of con-
ceptualism make several valid points in advocating that a clear definition of
Indian irrigable acres should be developed and that for a particular adjudication
the factors that went into the determination of irrigability should be stated. The
issue does not seem sufficiently resolved to be a subject suitable for judicial
notice without evidence of proof on the part of the proponent.
• Sondheim and Alexander, Federal Indian Water Rights: A Retrogression to Quasl-

Riparianism, 34 So. _Calif. L. Rev. 111 (1961).
747
Holdings such as Arizona v. California
Oalifornia which define water rights in terins of
both acres and acre-feet each being a limiting factor on the other alleviate most
of the practical problems in determining the lands for which rights have been
granted.
The development of an evolving dynamic standard for the determination of
land irrigability would appear to be advantageous from the standpoint of the
quality of proof that must be present for particular land to be so classified. It
does not appear that .the term irrigable land is so clear and well-understood that
courts should not make findings of fact regarding it.
m. CONCLUSIONS AND RECOMMENDATIONS
Indian water rights represent an economically significant, ill-defined and often

unenforced property right of the Indian people. The effect is a cloud over many
private water developments that are using, may be using or may think they are
using Indian water. Although there are obviously short term beneficiaries under
the status quo, the long term interests of the Indian and non-Indian water users
and the nation a:s a whole would appear to be a determination of the extent of
existing rights in definative terms. Without this, many if not all the problems
of uncertainty inherent in the riparian system are present under the guise of
Indian water rights. Based on these premises, it is suggested that:
(1) A complete inventory of the Indian land base including the poten-
tially available water be made.
(2) Based on an analysis of the land and water inventory, a projection
of the water qUantity
quantity that can be beneficially used in a reasonable and eco-
nomically efficient manner.
(3) The quantity of water developed under (2) as modified by the vested
rights if any of other parties, with an upper per acre allocation limitation
of what the average irrigable acre in the area would utilize, becomes the
Indian water right on a particular tract.
(4) The Indian water right may be assigned or leased, but may not be
sold as long as there are restrictions on the alienation of the land to which
it was appurtenant.
Mr. HANLEY. The conclusions and recommendations, submitted are
solely my own views. I think the statement lays the legal frnmework
framework
for the recommendation that Chairman MacDonald made and that's
to have a complete inventory of Indian water rights and that
rthat they be
clearly defined.
Senator KENNEDY. Mr. Brown.
DIPACT Of' ELECTRICITY TRANSlIHSSlON
TRANSliHSSION UNES ON NAVJO PEOPLE
Mr. BROWN. I have a hard time talking, but my name is Eddie
Brown and I'm a chapter officer from the Rock Springs Chapter. I'm
very honored to be here before you, I feel very humble and I want to
tell you I appreciate what you said this morning. Apparently you
know a lot more about land and water ri~hts than I do. But the rea-
son I'm here today is because right now In m our area and some of the
cha::pters that are next to ours, we are being threatened by a power
chapters
utilIty company that plans to run a 345-kilowwtt powerline through
utihty
our land.
The reason we are opposed to this is because we think that the
theNNavajo
avajo
Nation is already being over used by these gigantic power lines. In our
area they are proposing to run one through there and the people there
do not want it. I want to say that the people there respect their lands.
Even though what little allotted lands they have, they respect and they
love it, and I keep saying that. You know, Anglos or non-Indians can
never even have a concept of what we mean when we say we have
respect for the land or when we say that we have love for land. Even
.along
along the proposed routing there are burials and there are shrines
APPENDIX
1. THE NAVAJO TRIBE'S WATER RIGHTS IN THE CoLORADO RIVEB BASIN
(By Daniel H. Macmeekin, April 1971)

I. INTRODUCTION
A. The Southwestern Power Oomplea;

The Navajo Indian Reservation is currently confronting an environmental
crisis of the first magnitude. A consortium of public utilities, with the backing
and participation of the United States Bureau of Reclamation, is developing a
giant thermal power plant complex on and near the Navajo Reservation. This
complex will provide electricity to satisfy the burgeoning Q.emands of central
Arizona and southern California, as well as supplying the power necessary to run
the pumps which will divert water from the Colorado River to the mammoth
Central Arizona Project.
There are currently eight coal-burning power plans either planned or in op-
eration on or near the Navajo Reservation. Already in operation are the 1,500,000-
kilowatt Mojave plant in southern Nevada, the Cholla plant at the southern edge
of the Reservation in Joseph City, Arizona, and the 2,100,000-kilowatt Four
Corners-Fruitland complex in northwestern New Mexico. Initial construction
has started ·on the 2,310,000-kilowatt Navajo Generating Station, located on the
Navajo Reservation near Page, Arizona. In the works are a mammoth 5,000,000-
6,000,000-kilowatt plant planned for Kaiparowitz plateau in Utah, just across.
Lake Powell from Page, Arizona scheduled to go into operation in 1977; a
1,700,000-kilowatt generating station at Huntington Canyon near Price, Utah; a
1,030,0DO-kilowatt plant at Waterfiow, New Mexico, near the Four Corners-
Fruitland complex; 1 and, just recently announced a 250,000-kilowatt plant at
Hayden, Colorado.•
All ot these plants are coal-;burning. The Cholla plant is ted by coal from the
400,000-ton-a-year McKinley Mine, a strip-mining operation located between
Window Rock, Arizona and Yah-Ta-Hey, New Mexico. The McKinley Mine is
owned by a subsidiary of the Gulf Oil Corporation.• The Four Corners-Fruitland
complex is fueled by coal from San Juan County, New Mexico.• The Fruitland
strip mine, operated by Utah Construction and Mining Co., is capable of pro-
ducing 8.5 million tons of coal pear year, more than any other coal mine in the
world." Coal from the huge Black Mesa deposits on the Navajo and Hopi Indian
Reservations is supplying the Mojave station and will supply the Navajo Gen-
erating Station at Page. The Mojave station receives 570 tons of strip-mined
Black Mesa coal per hour by means of a 273-mile-long coal-slurry pipeline running·
1 The foregoing data is from Jack Waugh, "Multimillion kw. boon or disaster," Ch•·~stian
Science Monitor, Jan. 26, 1971, at p. 1. This article is the first of five excellent articles on
the southwestern power complex, which appeared In the Monitor from January 26 through
February 1, 1971. Other information indicates that a 2,000,000-kilowatt station is planned
for Castle Dale, Utah. Whether this Is the same plant as the Huntington Canyon station
or a different one is unknown. See Bureau of Reclamation, Draft of Environmental State-
ment, Navajo Project (January, 1971), at 58-59; Bureau of Reclamation, Draft of
Environmental Statement, Huntington Canyon Generating Station and Transmission
Line (March, 1971), at 37-38.
• Arizona Weekly Gazette (Phoenix), March 23, 1971, at p. A-5.
8 Gallup (N. Mex.) Independent, March 22, 1971.
'William Montgomery, "Coal Supply Luxing New San Juan Plant, "Albuquerque
Journal, August 25, 1970, at p. A-1.
• William Montgomery, "Fruitland Mine, Plant Liked," Albuquerque Journal, August 18,
1970, at p. A-1. El Paso Natural Gas Co. has also leased thousands of acres of coal-bearing·
land north of Gallup on the Navajo Reservation, but it is unclear whether this coal will
be used for power generation or for the production ·of natural gas through the process·
known as gasification. William Montgomery, "Water Key to Southwest's Growth," Albu-.
qurque Journal, August 26, 1970, at p. A-1.
(763)
764
from Black Mesa to the plant. The pipeline, which is the world's largest, is ex-
pected to carry 117,000,000 tons of pulverized coal suspended in an equal amount
of water during the 35-year contract period.• A railroad, now under construction
expressly for this purpose, will transport 23,000 tons of coal per aay the 78 miles
from the strip mine on Black Mesa to the Navajo Generating Station.' By 1976
the Mojave and Navajo generating stations are expected to consume 13,000,000
tons of Black Mesa coal annually.• The Kaiparowitz plant will burn 45,000 tons
of coal per flay, deep-mined from the Kaiparowitz plateau in Utah." The Hunt-
ington Canyon plant will also use deep-mined coal, at the rate of 1,200,000 tons
a year. This coal will be mined near the plant site at Huntington Canyon.10 The
source of the coal for the Hayden plant has not been announced.
The strip-mining of coal on and near the Navajo Reservation is only one
source of extensi>e environmental damage. The emissions from the power plant
stacks promise to pollute the skies over the entire 1'\avajo Reservation. Although
the public utilities involved tend to minimize the effects of this air pollution," it
is clear that even with the use of the most advanced technology now commer-
cially feasible, the increase in air pollution will be substantial. 'l'he four Corners-
Fruitland plant, already in operation, pours out more dust and fly ash per day
than do New York and Los Angeles together on an average summer day." It is
estimated that six of the plants (excluding the Hayden and Cholla plants) will
together emit 350 tons per day of dust and fly ash, 2,150 tons per day of sulfur
oxides, and 850 tons per day of nitrogen oxides. 13
Finally, there is the scenic pollution causen by the strip rriines, the coal-
carrying railroad from Black Mesa to Page, Arizona and the power lines criss-
crossing the Reservation. ·whether the Navajo Reservation and Lake Powell
areas will remain among the nation's leading tourist attractions is doubtful.
From an economic viewpoint, the southwestern mining and power complex
represents a diversion of economic resources from an area of lesser population to
an area of greater population. Conversely, the economic burdens-pollution and
other environmental damage--are shifted to the area of lesser population. None
of the planned generating stations would be permitted in Los Angeles, where the
construction of coal-burning power plants has been banned." The environmental
costs of providing power to meet the electricity needs of consumers in Phoenix
and Los Angeles will be borne by the Indian residents of the Colorado plateau.
And, in a larger sense, they will be borne by the American public.
B. The relationship between the power complex ana Navajo water rights
The relationship between the thermal generating complex described above and
the water rights of the Navajo Tribe is at first obscure. True, deep wells have
been drilled on Black Mesa to obtain the 2,400 acre-feet of water necessary for
the operation of the coal-slurry pipeline.15 True, the Navajo Tribe has allotted
34,100 acre-feet of water per year for the cooling towers at the Navajo Generat-
ing Station and an additional 3,000 acre-feet per year to supply the municipal
needs of Page, Arizona." Much more significant, howe>er, is the effect of the
power-plant complex on Navajo water rights in the Colorado River basin. These
water rights are extensive and could account for a very substantial percentage
6 William Montgomery, "l\fojave Plant Faces Flaws Before Start," Albuquerque Journal,
August 21, 1970, at p. A-1.
7 Henry Fuller, "Salt River Builds a Railroad," Arizona. Republic (Phoenix), March 21,
1971, at p. K-1. The Black 1\Iesa strip mine is operated by Peabody Coal Co., a subsidiary
of Kennecott Copper. !d.
8 "Indians Think Twice as Quest for Coal Scars their l\Iesa," Christian Science JJfonitor,
Jan. 28, 1971, at p, 3.
*B~· Daniel H. Macmeekin. April1971.
• Vl7 agub, supra, note 1 ; William l\Iontgomery, "Kaiparow!tz Power Project Under Fire
by Conservationists," Albuquerque Journnl, August 23, 1970, at p. A-1.
10
Montgomery, supra, note 4. The Huntington Canyon coal will also be mined by Pea-
body Coal Co. I d. See note 7, supra.
11
See, for example, the advert!sment by Arizona Public Service Co. in the Navajo Time!
(Window Rock, Arizona), March 25, 1971, at p. 6.
12 Jack Waugh, "Power Goliath Trails Soot Across West," Christian Science JJfonitor,
Jan. 27, 1971, at p. 1.
13 !d.
"!d.
15 John J. Harrigan, ("Deep-Well Dr!llers Assure Critics Black Mesa Water Table Un-
all'ected," Arizona Republic (Phoenix), March 22, 1971, at p. 18. See discussion infra. An
acre-foot of water is that amount necessary to cover one acre one foot in depth. It is
equal to 325,850 gallons. Black's Law Dictionary 42 (4th ed. 1951 ).
1
• See Navajo Tribal Council Resolution CD-108-68, passed Dec. 11, 1968, Navajo
Tribal Council Resolutions (unnumbered), passed June 3, 1969. See discussion intra.
765
of the flow of the Colorado River and its tributaries, as will be documented more
fully infra. With this fact in mind, parts of the power plant complex are seen in
a different light. The Bureau of Reclamation is a participant in the Navajo
Generating Station and will receive 24.3% of the power generated, or 561,000
kilowatts. "The entitlement for the Bureau of Reclamation is intended primarily
for pumping purposes on the Central Arizona Project." 17 More specifically, the
power will supply a series of pumping plants "which will lift Colorado River
water hundreds of feet from Lake Havasu and carry it to the [Central Arizona]
Project service areas in Maricopa, Pinal and Pima Counties. . . ." 18
In essence, then, the relationship between the southwestern power complex
and the water rights of the Navajo Tribe is this: Navajo coal mined from Black
Mesa will be burned at the Navajo Generating Station on the Navajo Reservation
in order to pump Navajo water from the Colorado River to the Central Arizona
Project. That the Black Mesa strip mine is on Indian land is clear. That the
Navajos are the people most affected by the air pollution generated by the power
plants is also clear. That it is Navajo water that will supply the Central Arizona
Project is less obvious, but just as clearly established by legal precedent. The
remainder of this paper will discuss the nature and extent of Navajo water rights
as well as some of the efforts that have been made to deprive the Navajos of those
rights.
ll. THE RESERVED RIGHTS DOCTRINE
A. The nature of Indian water rights

The water rights of Indians living on federally-created reservations are ex-
tensive. Already the tiny Lower Co'lorado River Basin tribes have been awarded
895,496 annual acre-feet of main channel Colorado River water while the entire
state of Arizona was awarded only 2.8 million annual acre-feet in the same
action.>•
Indians' claims to water rest primarily on rights attaching to the reservation
lands they occupy. These are not restricted to waters flowing through or con-
tiguous to the reservations, but extend to the sources of the waters as well. This
means that Indian reservations have priority of the use of waters in watersheds
adjacent to their reservations and can thus deprive upstream and downstream
nsers including states of all waters except the surplus after Indian needs are
fulfilled.
l\Ioreover, water rights are property rights which cannot be appropriated with-
out just compensation under the Fifth and Fourteenth Amendments to the
United States Constitution.'" Finally, the rights to water attach as well to por-
tions of reservations created by Executive Orders as to those created by Treaty
or Congressional Act."
As summed up by Professor Charles J. l\Ieyers, reserved water rights of
Indians on Reservations include these additional aspects:
1. The priority date is the date the reservation is created. State-created
water rights in existence before this date are superior; those arising there-
after are subordinate.
2. The reserved right, unlike state-created appropriative rights, does not
depend upon diversion from the stream and application to beneficial use.
17 Dept. of Interior, Bureau of Reclamation, Draft of Environmental Statement-}.'avajo

Project, at p. 1 (January, 1971).
18Dept. of Interior, News Release: Facts About the Central Arizona Project (no date).
19Arizona v. California, 376 U.S. 340. 342, 344-45, ( 1964) (decree).
"'Contra, Charles J. Meyers, "The Colorado River", 19 Stan. L. Rev. 1, 47 (1966-67) :
Is a consumptive water right in a navigable stream, whether the right is perfect
or unperfected, constitutionally compensable when taken In the exercise of the navi-
gation power? As yet this question has not been answered by the Supreme Court,
but the existing authority would clearly permit a negative answer.
The existing authority cited by Meyers Is United States v. Twin Cit!! Power Co., 350
U.S. 222 (1956). That case held that the United States, in a condemnation proceeding, Is
not by force of the Fifth Amendment required to pav the former owner of the land the
value of that land as a site for future hydroelectric· power operations. The Court held:
" . . . water power in a navigable stream is not by force of the Fifth Amendment a
compensable interest when the l.Jnited States asserts Its easement of navigation . . . ." Td.
at 228. But see United States v. 5.617.91, Acres of Land, 162 F. Supp. 108 (D. Mont. 1958),
where It was held, in a similar condemnation proceeding, that no such easement existed
when the use of waters of a navigable stream was reserved to an Indian Tribe and,
therefore, that the water·power value of the condemned land should be Included in the
compensation award.
"Arizona v. California, 373 U.S. 546. 598 (1963) (opinion).
756
The reserved right arises when the reservation is established even though
the water right is not exercised for decades thereafter. In this respect the
right is like a riparian right. In time of shortage, however, it is unlike a
riparian right, for it does not share the available supply pro rata but rather
takes its place on the priority schedule and receives water ahead of all rights
of later date.
3. As may be inferred from the statement above, the federal reserved
right need not be created or exercised in accordance with state law. Not
only does its creation not depend on diversion of water and application of
it to beneficial use, but the right does not depend upon a filing with the state
water agency or upon recording of the claim. And it is not subject to state
laws on forfeiture and abandonment.
4. The quantity of water to be enjoyed under a reserved right is measured
by the quantity necessary to fulfill the purposes of the reservation,. both at
the present time and in the future . .Arizona v. California quantified this
amount for the Indian reservations as the amount of water necessary to
irrigate all the irrigable land on each· reservation. This quantity represents
for those reservations the amount of water they are entitled to for all time
unless, of course, the reservations are enlarged by additional withdrawals.
For five Indian Reservations and two wildlife refuges, reserved water rights
aggregated just under one million acre-feet in diversions."
The legal theory on which the grant of such enormous and valuable rights is
based derives from the "Reserved Rights" doctrine first declared in Winters v.
United States, "' and most recently applied in .Arizona v. California."' These cases
bold that water as well as land was reserved by the Indians when their reserva-
tions were established or enlarged because of the Indians' need for great quanti-
ties of water to develop their reservations in the peaceful and pastoral manner
intended by the Government.
In the Winters case the United States, on behalf of the Indians of the Fort
Belknap Indian Reservation, brought suit to enjoin upstream users from inter-
fering with the flow of the Milk River to the reservation. The Supreme Court
held that, when the Indians gave up their rights to their former lands in ex-
·~hange for the arid, unirrigated land of the reservation, sufficient water was
reserved from the Milk River to enable the Indians "to become a pastoral and
civilized people." The Court further held that the Indians' rights to the use of
this water could not be diminished by any subsequently-created rights under
state water law. The lower-court decree granting the requested injunction was
affirmed.
In .Arizona v. California the Supreme Court, referring to the situation of the
Lower Colorado River tribes, further elaborated on the rationale behind the Re-
. served Rights doctrine:
Most of the 'land in these reservations is and always has been arid. If the
water necessary to sustain life is to be had, it must come from the Colo-
rado River or its tributaries. It can be said without overstatement that when
the Indians were put on these reservations they were not consideroo to be
located in the most desirable area of the Nation. It is impossible to believe
that when Congress created the great Colorado River Indian Reservation
and when the Executive Department of this Nation created the other reserva-
tions they were unware that most of the lands were of the desert kind-
hot, scorching sands-and that water from the river would be essential to
the life of the Indian people and to the animals they hunted and the crops
they raised.'"
As interpreted by the courts and articulated by a legal scholar and water
·expert, Charles J. Meyers, "The reserved rights doctrine holds that, upon the
.creation of a federal reservation on the public domain-whether by tr_eaty,
legislation, or executive order-the reservation has appurtenant to it the right
to divert as much water from the streams within or bordering upon it as neces-
sary to serve the purpose for which the reservation was created." 26
The Reserved Rights doctrine has been interpreted in two somewhat differing
ways. As enunciated in the Winters case, the doctrine stands for the proposition
that, on making a treaty with the United States government, the Indians them-
2 2 Meyers, supra, note 20, at 65-66.

"207 u.s. 564 (1908).
24 373 u.s. 546 (1963).
""I d. at 598-99.
' 6 Meyers, supra, note 20, at 65.
767
,<;elves reserred for their own use sufficient water to make their reservations
productive. Thus, ". . . . when the Indians made the treaty grantimg rights to
the United States, they reserved the right to use the waters of Milk River, at
lease to an extent reasonably ncessary to irrigate their lands. Thf~ right so re-
:served continues to exist against the United States and its grantees, as well as
.against the state and its grantees."'' .
The second interpretation of- the Reserved· :Rights doctrine holds that whep.
the United States created the various Indian reservations, the United States
reserved the necessary water from the adjacent rivers and stre,ams for those
reservations. Thus, in Arizona v. California, "[t]he Master found both as a mat-
ter of fact and law that when the United States created these reservations or
added to them, it reserved not only land but also the use of enough water from
;the Colorado to irrigate the irrigable portions of the reserved lands." 28 The
Supreme Court went on to hold that "[w]e have no doubt about the power of the
United States ... to reserve water rights for its reservations and its property." 29
The original construction of the Reserved rights doctrine gives greater recogni-
tion to tribal sovereignty. Under this interpretation, the reserved water rights
may be seen as property rights vested in the Indians, which may be defended
.against all comers, including the United States. The second interpretation could
derive from either of two theories. The first of these derives from the trustee-
ship relation between the United States and the Indian tribes, wherein the United
·states holds title to Indian lands and waters in trust for the Indians. Under this
theory, the United States is reserving water to which it has title for lands to
which it has title. 30 This theory is not incompatible with the original interpreta-
tion of the Reservoo Rights doctrine, as long as it is recognized that the water is
held in trust for the Indians.
An alternative theory underlying the second interpretation of the Reserved
Righte doctrine is based in the Federal government'·s plenary control over the
public domain. When the Federal government removes land from the public
domain for federal uses-including Indian reservations-it has the power to also
reserve sufficient water from the public domain for use on these 'lands. This
theory underlies the Supreme Court's opinion in Arizona v. California."
While the original Winters construction of the Reserved Rights doctrine is
more compatible with vested Indian property rights in the reserved water, the
.second interpretation is more easily reconciliable with the protection of Indian
water rights on reservations that were created not by treaty but by act of Con-
gress or executive order. 32
Regardless of which construction is placed upon the Reserve Rights doctrine,
however, it is clear that Indian reservations-no matter how created-have the
right to use sufficient water from included and adjacent streams and rivers to
make those reservations productive, and that that right is superior to all sub-
·sequently-created state water rights.
Reserved rights attach to reservations whether or not the instruments creat-
"ing them mention water rights. ·water rights were not mentioned in the treaty
'involved in the Winters case nor in the act of Congress and executive orders
•creating the Indian reservations involved in Arizona v. California. In both
cases, the Supreme Court held that an implied reservation of water rights was
made at the time the Indian reservations were created."
B. The emtent of Indian water rights
The Winters opinion contains no distinct rule by which to measure the Indians'
reserved water rights except as can be gleaned from the reasoning of the court
in initially establishing a valid claim. As much water was reserved in that case
"Winters v. United State3, 143 F. 740, 749 (9th C!r. 1906), afftrmed, 207 U.S. 564
(1908).
"'373 U.S. at 596.
•• I d. at 598.
3o See United States v. Mcintire, 101 F. 2d 650 (9th C!r. 1939).
31 See 373 U.S. at 595-601. See also Report of the Special Master In Arizona v. Cali-
fornia 259 (1960) [hereinafter Master's Report]. "in the Winters case the United States
exercised its power to reserve water by treaty ; but the power itself stems from the United
States' property rights In the water, not from the treaty power."
32 This interpretation, of course, is also more amenable to the reservation of water rights
by the federal government for other federal lands-national parks, wildlife refuges, mil!-
tary reservations, and the like.
33 Winters v. United States, 207 U.S. 564, 575-77 (1908) ; Arizona v. California, 373 U.S •
.546, 598-600 (1963).
768
as would fulfill the intentions of the Treaty makers. The Indians on the Fort
Belknap Reservation thus reserved as much water as needed to make agricul-
tural pursuits "valuable and adequate."
In cases following Winters, courts have struggled with the problem of recon-
ciling the changing Indian need for water with the non-Indian need for a definite
allocation to permit development of the off-reservation lands sharing the same
watershed with the Indians. Thus, in Conrad Inv. Co. v. United States, .. decided
shortly after the Supreme Court decision in Winters, the Ninth Circuit Court of
Appeals held :
It is further objected that the decree of the Circuit Court provides that,
whenever the needs and requirements of the complainant [Indians] for the
use of the waters of Birch Creek for irrigating and other useful purposes
upon the reservation exceed the amount of water reserved by the decree for
that purpose, the complainant may apply to the court for a modification of
the decree. This is entirely in accord with complainant's rights as adjudged
by the decree. Having determined that the Indians on the reservation have a
paramount right to the waters of Birch Creek, it follows that the permission
given to the defendant to have the excess over the amount of water specified
in the decree should be subject to modification, should the conditions on the
reservation at any time require such modification...
But in 1939 the Ninth Circuit reversed itself. In U.S. v. Walker River Irriga-
tion District, •• the court permanently fixed that reservation's entitlement by
making a determination of the population of the tribe over a period of 70 years,
the number of acres cultivated, the quantity of water in the area, and the needs
for domestic, stock watering and power-generating purposes.
In United States v . .Ahtanum Irrigation District, 37 the court rejected any notion
that the amount of water reserved to an Indian reservation was to be measured
by the Indians' needs at the time the reservation was created:
It is plain from our decision in the Conrad Inv. Co. case ... that the para-
mount right of the Indians to the waters of Ahtanum Creek was not limited
to use of the Indians at any given date but this right extended to the ultimate
needs of the Indians as those needs and requirements should grow to keep
pace with the development of Indian agriculture upon the reservation."
The most recent, and apparently current, statement of the measure of Indian
reserved water rights is by the Supreme Court in Arizona v. California. There
the Court sought an explicit reconciliation between the ultimate Indian need for
water and the need of other users for a definite allocation for its planning pur-
poses. Like the .Ahtanum Irrigation District case, the Supreme Court rejected
any measure of Indian need based on the amount of water used at the .time the
Treaty was signed. lnRtead the Court fixed the measure of water from the Lower
Colorado River Basin reserved for the Indian tribes along the river as ". . .
enough water . . . to irrigate the practicably irrigable acreage on the reserva-
tions." •• The Court went on, " ... We have concluded ... that the only feasible
and fair way by which reserved water for the reservations can be measured is
irrigable acreage." •• So the rule remains.
Of note is the .Arizona v. California Master's finding that, " . . . quantification
of the Indian water on the basis of irrigable acreage was not intended to limit
the use of the water to agriculture . . . . He [the Master] also suggested that
nothing in his proposed decree forbade the transfer of the land and water
together or the water right alone.".,
Alienability of the right to use the water produces an optimal allocation of
resources, since that user who is willing to pay the most for the right (and to
whom the right is most valuable) will be able to purchase and use the water
right!' Thus, Indians have rights of use to a fixed quantity of water beyond the
34 161 F. 829 (9th Cir. 1908).

•• I d. at 835.
36 104 F. 2d 334 (9th Cir. 1939).
• 7 236 F.2d 321 (9th Cir. 1956).
35 I d. at 327.
39 373 U.S. at 600 .
.. I d. at 601.
41 Meyers, supra, note 20, at 71.
42
I d. See f!nited States ea;. rel. Ray v. Hibner, 27 F. 2d 909, 912 (E.D. Idaho 1928) :
The nght of the Indians to occupy, use and sell both their lands and water is now
recognized, . . . and, such being the case, a purchaser of such land and water right
acquires, as under other sales, the title and rights held by the Indians, and that
there should be awarded to such purchaser the same character of water .right with
equal priority as those of the Indians.
See also United States v. Powers, 305 U.S. 527 (1939).
ase 1:23-cv-00494-GBW-JFR Document 8-1 Filed 06/27/23 Page 245 of 3
769
amount used at the signing of the Treaty or at the time of the federal grant of
land creating their reservation, and may also have the right to alienate those
water rights.
C. A. danger signalr-United States v. District Court tor Eagle County
On March 24, 1971, a unanimous decision was rendered by the United States
Supreme Court in the case of United States v. District Court in and tor the
County of Eagle.•• A second unanimous decision was handed down in the com-
panion case of United States v. District Court in and tor Water Division No.5 ...
These cases hold, in essence, that the United States has consented, by virtue of
the McCarran Amendment, 43 U.S.C. § 666, to have its reserved rights (and the
reserved rights of the Indian tribes) adjudicated in state court proceedings.
While these decisions do not change the substantive law governing reserved
rights, they do mean that Indian tribes seeking to defend their water rights may
have to do so in less sympathetic state court proceedings. Since a federal question
would be involved, there is always the possibility of ultimate review by the
United States Supreme Court. The Supreme Court, however, would probably be
disinclined to review critical findings of fact by the state courts. State court
findings with reference to "practicably irrigable acreage", for instance, could be
combined with acceptable conclusionns of law to minimize the water available to
Indian tribes.
A small indication of the significance of the Eagle County decision is the
enthusiasm with which it has been greeted in the water-scarce Western states.
For example, Senator Dominick of Colorado stated: "Needless to say, I am
delighted with these two decisions."., And Senator Moss of Utah stated: " ... I
was gratified that the Supreme Court in its March 24 decision rejected the con-
tention that the reserved water rights of the United States are exempt from
adjudication suits." ••
Ill. THE RESERVED RIGHTS OF THE NAVAJO TRIBE
A.. The extent of Navajo reserved rights

By Treaty of June 1, 1868," the United States created a reservation for the
Navajo Indians.· The territory reserved consisted of a relatively small tract in
eastern Arizona ·and western New Mexico which bad been part of the Navajos'
much larger ancestral lands.48 By later executive and legislative actions the
Reservation in Arizona, New Mexico and Utah was enlarged. The last additions
were made on June 14, 1934 when Congress enacted a law conveying tracts K, M
and 0 (see Appendix I) to the Tribe.
The entire Navajo Reservation lies within the Colorado River Basin (see
Appendix II). This area is the geographic region from which all water drains
into the Colorado River on its way to Mexico and the Gulf of California. Portions
of the Colorado and San Juan Rivers form the northern and western boundaries
on the Reservation. The Little Colorado River flows into the Colorado from the
southwestern parts of the Reservation.
The Colorado River system drains 242,000 square miles of land in the United
States (and an additional 2,000 square miles in Mexico). The river itself is some
1,300 miles long.
The average flow in the main channel of the Colorado River at Lee's Ferry, the
dividing point between the Upper and Lower Colorado River Basins, for the
period 1911-60 was 13,017,000 acre-feet a year.<•
Most of the land within the 25,000 square-mile Navajo Reservation is arid.
There are no water sources within the Reservation sufli.cient to sustain agricul-
tural, industrial or other development. Moreover, the groundwater supply is
quite likely inadequate to meet foreseeable domestic needs of the burgeoning
Navajo Reservation population. Hence, the ()lilly source of substantial water
43 39 U.S.L.W. 4333 (U.S., March 23, 1971).
•• 39 U.S.L.W. 4335 (U.S., March 23, 1971).
"Oougressional Record (daily ed.), April1,1971, at S4445.
•• Congressional Recore! (daily ed.), March 29, 1971, at S394S.
47 15 Stat. 667.
"See Appendix I showing the creation and later additions to the Navajo Reservation.
•• Meyers, supra, note 9, at p. 2.
770
supply is the mainstream of th~ Colorado River and its tributaries-the Sarr
Juan and Little Colorado Rivers.
Water has been a major issue in the Southwest ever since man began to occupy
the largely arid or semi-arid area. Scarcity of water forced the_Hohokam Indians
as long ago as 2,000 years to erect irrigation canals from distant rivers to their·
homes near present-day Phoenix, Arizona ...
With the rapid increase in _population in the 20th century, the states of the
Colorado River Basin have argued with each other, sometimes bitterly, over the
distribution of the water supply. The fear of the Upper Basin states that the
more rapid Lower Basin development would eventually deprive them of all
Colorado River water, led to the 1922 Colorado River Compact in which the
states apportioned the basin's waters between the upper basin states (Colorado,
Utah, Wyoming, New Mexico and Arizona) and the lower basin states (Nevada,
California and Arizona)." In 1948 the upper basin states reached agreement as
to the apportionment among themselves of the upper basin's waters. Under the
terms of the Upper Colorado River Compact," each of the states except Arizona
is entitled to a certain percentage of the consumptive use of water legally avail-
able, while Arizona, primarily a lower basin state, gets the fixed amount of
50,000 acre-feet of water per year.
At the same time it pursued its Colorado River Basin claims, Arizona devised
a massive project for use of the water once acquired. The project, called the
Central Arizona Project (CAP), has been authorized by Congress 03 but appro-
priation of the federal monies required for the huge water works and systems
has thus far been minimal...
The core of CAP is a series of pipes and canals from Lake Havasu on the
lower basin to the Phoenix and Tucson areas. Since Parker's elevation is lower
than Phoenix's the water 'will have to be pumped electrically all the way. Ari-
zona's plan is to construct the coal-fueled steam generating power plant at Page
on the upper basin and transmit the electricity to Parker and other points to
pump the water from Lake Havasu to Central Arizona. Arizona intends to use
its 50,000 annual acre-feet of upper basin water to help produce the power while
it uses 1.2 million acre-feet of its lower basin water, for farming and other
productive purposes in Central Arizona.
The Navajo Reservation straddles the upper and lower Colorado River Basins.
It borders on the mainstream of the Colorado River both above and below Lee's
Ferry. The San Juan River, which is a major upper basin tributary, flows
through the Reservation and forms much of its northern border. The Little
Colorado River, a major lower basin tributary, flows through the southwestern
portion of the Reservation.
Like the treaty with the Fort Belknap Indians discussed in Winters, the
Treaty of 1868 with the Navajos contemplated that the Navajo would become a
"'A.rizona. v. Oaliforn.ia, 373 U.S. 546, 552 (1963).

"This compact is reprinted following section 45-571 of the Arizona Revised Statutes.
•• This compact is reprinted followin~r section 45-581 of the Arizona ReYised Statutes
and may also be found at 63 Stat. 31 (1949).
"'Colorado River Basin Project Act. Public Law 90-537, 82 Stat. 885, 887, codified at
43 U.S.C.A. H 1521 et. seq. (Supp. 1971). Included in the authorizing legislation was a
provision forbidding the Secretary of Interior for a period of ten years from making any
studies of methods of importing water from other river basins to the Colorado Basin. 43
U.S.C.A. § 1511 (Supp. 1971). The reason for this provision is clear. There is currently not
enough water in the Colorado River Basin to satisfy all the competing claims to it. See gen-
erally Meyers, supra, not 20, passim" (Sixty-eight potential wat<,r-usin~r ag~ncies have made
requests for a total of 5.2 million acre-feet of CAP water. CAP will be abiP to provide a
maximum of 1.2 million acre-feet. Ben Avery, "Water District's Goal iR :\larch 1," Arizona
Republic (Phoenix), Feb. 17, 1971, at p. 1.) One method of alleviating the pressure of
these competing claims and thereby ensuring the successful completion of the Central
Arizona Project would be to divert water from another source to the Colorado River. The
Columbia River basin is the logical source for such a diversion. The Pacific Northwest
states, however, are adamantly opposed to such a trans-basin diversion. See. for example,
the statement of Idaho Governor Cecil B. Andrus before the Western States >Vater Council
meeting on April 17, 1971: "Idaho has no surplus of water to be siphoned or tunneled else-
where." Quoted in UPI dispatch, Arizona Republic (Phoenix), April S, 1971, at p. B-13.
•• 1970-71 construction funds of $1.2 million have been appropriated, but are being hPld
up by the Bureau of the Budget as of the datP of this writing. "Arizona Ce!Pbrates Water
Gains," Ohri•tian Science Monitor, Nov. 23. 1970, at p. 11: Ben Avery, "Committee Clears
CAP Water Tax Bill," Arizona Republic (Phoenix), March 24, 1971, at p. 15.
771
pastoral people ... It follows from the Winters case and its progeny, including
Arizona v. California, that the Navajo Reservation is entitled to as much water
from its contiguous and enclosed waterways as will make the land valuable and
adequate for agriculture and stock raising, which along with farming, are
frequently alluded to in the Treaty as a legitimate Navajo occupation. And by
reason of Arizona v. California these rights extend to the later executive and
congressional additions to the Navajo Reservation.
Reserved rights to water therefore belong to the Navajo Tribe for whom, as
for the Low-er Colorado River tribes and the Yakimas, water is a necessity for
economic development. For them, as for the other tribes, significant quantities
of water are crucial to fulfillment of the purposes for which their Reservation
was created and later expanded, the pursuit of a civilized means of existence.
Most of the Navajo claims originated before Arizona became a state (1912)
and thus have priority over all claims of the State of Arizona. Areas "C", "H",
"K", "M" and "0" (see Appendix I) were added to the Reservation by executive
order after Arizona was admitted to the Union. While this does not affect the
priority of the Navajo claim to the waters of the Colorado River system, it does
affect the measure of that claim.
The Navajos' claim to water under the Winters Doctrine extends to the Colo-
rado River and its tributaries, the San Juan River and its tributaries, and the
Little Colorado River and its tributaries. Because the greater part of the Reser-
vation was created before the various states beneficially used large amounts of
water, the Navajos' claim is not significantly diminished because certain of the
states in the Colorado River Basin were admitted to the Union before certain
areas were added to the Reservation.
The Navajos' specific claim to reserved water rights in the Colorado River
Basin was created originally in 1868 by establish~ent of the Reservation in
Area "G" (see Appendix I) with the San Juan River passing through its
northeast corner, and was later extended by Executive Order of May 17, 1884,
to Area "A" on the map at which time the Colorado River itself, as well as the
San Juan River, became the Reservation's boundary. Previous executive orders
had increased the Reservation by addition of Areas ",J", "F" and "E'. In 1900
Area "D", partially bounded by the Little Colorado River, was added to the
Reservation.
~'he priorities to the waters of the Colorado River system are determined by
(1) the dates that various portions of the Reservation were created or added,
and (2) the dates the various states claiming waters from the system were
admitted to the Union. The relevant priority dates are (again referring to the
Areas of the Reservation as designated in Appendix I) :
California __________________________________________ 1850
Nevada--------------------------------------------- 1864
Area "G" ------------------------------------------ 1868
ColoradO------------------------------------------- 1876
Area "F" ------------------------------------------ 1878
Area "J" ------------------------------------------ 1880
Area "E" ------------------------------------------ 1882
Area "A"------------------------------------------ 1884
Area "1"------------------------------------------ 1886
Wyoming__________________________________________ 1890
Utah----------------------------------------------- 1896
Area "D" ------------------------------------------ 1900
Area "L" ---------'--------------------------------- 1901
Area "B" ------------------------------------------ 1905 and 1933
Area "N" ------------------------------------------ 1907 and 1908
Arizona-------------------------------------------- 1912
New Mexico--------------------------------------- 1912
Area "H"------------------------------------------ 1913
Area "K" ------------------------------------------ 1918, 1930 and 1934
Area "C" ------------------------------------------ 1930
Area "M"------------------------------------------ 1934
•• Treaty with the Navajo Indians, Art. VII, 15 Stat. 667, 669 (1868) : "When the head
of a family shall have selected lands and received his certificate as above directed, and
the agent shall be satisfied that he intends in good faith to commence cultivating the
soil for a living, he shall be entitled to receive seeds and agricultural implements for the
first year, not exceeding in value one hundred dollars, and for each succeeding year he
shall continue to farm, for a period of two years, he shall be entitled to receive seeds and
implements to the value of twenty-five dollars." Most of the articles in the Treaty reflect
the understanding that the Navajos would henceforward be primarily en~aged in agricul-
tural pursuits.
772
'While some of the states' claims have priority over certain areas of the Reser-
vation, the state claims are dependent upon the beneficial use which was made
of the water at the time the various segments of the Reservation were created.
Thus, if in 1868 when the Navajo Reservation was first created, California was
beneficially using 1,500 acre-feet of water from the Colorado River system, Cali-
fornia would only take precedence over Area "G" (the original Reservation) to
the extent of 1,500 acre-feet. Area "G" would have a claim superior to that of
California for all system water beyond that 1,500 acre-feet.
The precise extent and value of the Tribe's water rights is difficult to determine,
primarily because a soil inventory of the Reservation has never been made and
the reason a soil inventory has never been made is that absent an available
water supply, no one goes to the expense of making such a study. The Arizona v.
California formula for determining the extent of Indian water rights is as
follows:
The Tribe is entitled to that amount of water which is necessary to make
practicably irrigable land productive.'"
First, the amount of irrigable acreage is determined by an irrigation feasibility
study. The factors taken into account are at least: (1) climate (rainfall and
length of growing season), (2) chemical analysis of soil to determine capability
to support agriculture, and {3) depth of soil to bedrock or other underlay.
Second, the amount of water needed to make the irrigable land productive, the
"consumptive use rate", is calculated. In fixing the consumptive use rate, the
following major factors are relevant: (1) climate, (2) soil texture and drainage
characteristics, ( 3) anticipated crop pattern (i.e., the type of crops to produce),
and ( 4) irrigation efficiency rate (i.e., the percentage of the water delivered at
the supply point of the irrigation project which, given the efficiency of the
irrigation system, will actually reach the plant stems).
The amount of Indian water entitlement then can be expressed in terms of
acre-feet of water per acre of irrigable land. It should be emphasized here that
the quantum of water entitlement is at the supply point of the irrigation project.
Diversion from the water source of a larger quantity of water is necessary (to
allow for evaporation, for example) to deliver the entitlement. In Arizona. v.
California., the Court found that there were 136,636 irrigable acres on five Indian
reservations along the Colorado River. The reservation land was characterized
as arid. The Court awarded a diversion of 895,496 annual acre-feet of water to
irrigate the 136,636 acres for an average consumptive use rate of 6.5 acre-feet of
water per acre."' Of note is the inclination of the Court to liberally determine
and allot water to the Indian tribes. The estimates of irrigable acreage and con-
sumptive use rates were clearly on the high side.
For example, if it is assumed (and it may be realistically) that the Navajo
Reservation contains only 2 million irrigable acres out of its total 16 million and
that the consumptive use rate were only 5 acre-feet per acre, the Tribe's alloca-
tion of water would be 10 million acre-feet per year.
It is impossible to estimate the dollar value of the Tribe's potential claim,
because money is not a substitute for water. It is interesting to note, however,
that the State of Arizona seeks a billion dollar plus appropriation for Central
Arizona Project to transport 1.2 million acre-feet per year from the Colorado
River near Parker, Arizona to the Phoenix and Tucson areas."" Futhemore, it
bears repeating that the Navajo Reservation is seriously underdeveloped eco-
nomically, the ground water table is dropping, and the population is increasing
at twice the national average. All of these factors indicate an increasing and
vital need for water in the future.
Some idea of the dollar value of Navajo water rights can be given by examin-
ing the price Central Arizona Project water-users are expected to pay for water.
Municipal and industrial water-users are expected to pay $50 per acre-foot while
irrigation users are expected to pay $10 per acre-foot.'• Using the more conserva-
tive, subsidized price of $10 per acre-foot and applying to the conservative figure
of 10 million acre-feet for the Navajo Reservation yields an annual value of
$100,000,000.
•• See 373 U.S. 600.

"'For the Colorado River Indian Reservation alone, the Con rt a warded a consumptive
use rate of 6.7 acre-feet per acre for 107,588 acres. 376 U.S. at 344-45. By comparison,
the farmers in Central Arizona were allowed a maximum of 3 acre-feet by the Salt River
Project during the years 1952--55. Master's Report, supra, note 31. at 46.
08
"Arizona Celebrates Water Gains," Ohri8tian Science Monitor, Nov. 23, 1970, at p. 11.
•• Ben Avery, "It's Conservancy District or CAP Delays, U.S. Says," Arizona Republic
(Phoenix), Feb. 18, at p. 1.
773
B. The effect of Arizona v. California
In Arizona v. California .. the Supreme Court did not specifically adjudicate
the water rights of the Navajo Tribe in the Colorado River basin. Whether it
should have adjudicated those rights is open to question. The Special Master in
that case did not apportion mainstream water between Lake Mead and Lee's
Ferry, holding that this apportionment was governed by water delivery contracts
executed by the Secretary of the Interior." It is in this stretch of the mainstream,
as well as above Lee's Ferry, that Navajo rights arise to mainstream water. The
Supreme Court, however, rejected the Special Master's conclusion, and held that
the adjudication would apportion water rights among all parties involved from
Lee's Ferry to the Mexican border."
Secondly, Arizona v. California apportioned only mainstream water and did
not attempt to adjudicate rights in the lower basin tributaries feeding into the
Colorado River. 63 Thus, Navajo rights in the Little Colorado River, a lower basin
tributary were not affected.
Thirdly, the Arizona v. California litigation did not involve water rights above
Lee's Ferry, the dividing line between upper and lower basin. Thus, Navajo
rights to the Colorado mainstream above Lee's Ferry and to the San Juan River,
an upper basin tributary, were not involved.
The interests of the Navajo Tribe in mainstream Colorado River water be-
tween Lee's Ferry and Lake Mead were not pursued by the United States, which
was charged with representing the interests of the Indian tribes in the litiga-
tion."' Whether this was inadvertent or intentional is unknown.
When the United States is a party to this sort of litigation, it is often required
to represent factions within the government which have directly conflicting
interests. 65 Such was the case in Arizona v. California, where the United States
was required to represent the interests of the Department of the Interior's
Bureau of Reclamation, which is responsible for the administration of a large
part of the waters of the Colorado River, as well as the interests of the Indi!Pl'
tribes, also within the bailiwick of the Department of the Interior. Because of
this conflict of interests, the Navajo Tribe, in conjunction with a number of other
Indian tribes, on June 27, 1956, filed a "motion for leave to file representation of
interest and representation of interest" in Arizona v. California. 66 This motion
rather poignantly pointed out the difficulties inherent in representation of Indian
tribes by the United States :
On November 2, 1953 pursuant to the Court's order of January 19, 1953,
the United States filed its petition of intervention with the Clerk of this
Court. The petition in unmistakable terms asserted the "prior and superior"
rights of the Indians. It declared (Par. XXVII, p. 23) :"The United States of
America asserts that the rights to the use of water claimed on behalf of the
Indians and Indian Tribes as set forth in this Petition are prior and superior
to the rights to the use of water claimed by the parties to this cause in the
Colorado River and is tributaries in the Lower Basin of that stream."
Four days later, apparently following heated protests by parties-litigant
opposing the Attorney General's assertion of the Indians' claims, the At-
torney General, without order of this Court and by means unknown to us,
physically withdrew the Government's petition of intervention from the
Clerk's office. On December 8, 1953, without order of this Court authorizing
amendment, the Attorney General substituted a revised petition of inter-
vention as if it were the initial filing. This extraordinary procedural lapse
supplied the means for omitting the critical language quoted above pleading
the "prior and superior" rights of the Indians. It permitted the United States
'"'373 U.S. 546 (1963) (opinion); 376 U.S. 340 (1964) (decree).
6' Master's Report, supra, note 31, at 225-26.
62 373 U.S. at 590--91.
.. I d. at 568-69.
MJd. at 595.
65 See generally William H. Veeder, "Federal Encroachment on Indian Water Rights and
the Impairment of Reservation Development," In Toward Economic Development for Native
American Communities: A Compendium of Papers Joint Economic Committee, Subcom-
mittee on Economy In Government, 9lst Cong., 1st Sess., at vol. 2, pp. 460, 490-93 (1969).
66 Motion for leave to file representation of Interest and representation of Interest by
the Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and
California; Gila River Pima-Maricopa Indian Community, Arizona; Hualapai Indian
Tribe of the Hualapai Reservation, Arizona; Navajo Tribe of Indians of the Navajo Reser-
vation, Arizona and New Mexico; Salt River Pima-Maricopa Indian Community of the
Salt River Reservation, Arizona; the San Carlos Apache Tribe, Arizona; and the Fort
McDowell Mohave-Apache Indian Community of the Fort McDowell Reservation, Arizona,
filed June 27, 1956 in Arizona v. California (U.S. S. Ct., No. 10, Original).
70--515 0-72-pt. 3--5
774
to make a radical shift in position without the embarrassment of setting
forth the reasons for the change as part of an application for leave to
amend."'
The United States in its response did not controvert these allegations, but
merely asserted its right to amend its pleading "once as a matter of course at
any time before a responsive pleading is served" under the Federal Rules of
Civil Procedure. 68 In fact, however, no amended pleading appears in the record.
The United States prevailed on the motion."' In 1961 the Navajo Tribe filed,
on its own this time, a motion to intervene in the lawsuit.'" Again, inadequate
representation of Navajo interests by the United States was alleged and docu-
mented. In particular, the motion noted that the United States took exception to
the Special l\Iaster's conclusion that water rights between Lake Mead and Lee's
Ferry were not being adjudicated, but that the United States was not protect-
ing Navajo interests in the event that the Special l\Iaster's conclusion was over-
turned, as it in fact was." The United States again successfully opposed the
efforts of the Navajo Tribe to ensure that its interests were protected." Motions
for reconsideration of the Navajo Tribe's motion for leave to intervene and for
an order requiring the United States to show cause why it should not be ordered
to account to the Court as to the adequacy of its representation of Navajo in-
terests were similarly unsuccessful."
Thus, the interests of the Navajo Tribe in the mainstream water between Lake
Mead and Lee's Ferry were never asserted before the Supreme Court. Whether,
because the United States was representing the interests of the Indian tribes, the·
Navajos are now precluded from asserting rights to the mainstream lower basin
by the principles of res judicata is an open question." If assertion of Navajo
rights is foreclosed by res judicata, it would seem that the Xavajo Tribe at least
has a very substantial claim against the United States for breach of fiduciary
duty.
0. Attempts to secure the waiver of Navajo reserved rights
On December 11, 1968, the Navajo Tribal Council enacted Resolution No.
CD-108-68. The first resolve clause of the Resolution stated:
* * * [T]he Navajo Tribe of Indians agrees that they will not make de-
mands upon the 50,000 acre-feet of water per year allocated to the State of
Arizona, pursuant to the Upper Colorado River Basin Compact, in excess
of 50,000 acre-feet per year, of which 34,100 acre-feet of water per year
shall be used by the coal-fuel power plant to be located on the Navajo
Reservation near Page, Arizona.
67 I d. at 8-9. See also Veeder, supra, note 65, at 512-13 ; Luther A. Huston, "West
Beset Again by Indian Trouble," New York Times, November 16, 1953.
68 Response by United States of America, Intervenor to lllotlon for leave to file repre-
sentation of Interest and representation of interest by the Colorado Rh·er Indian Tribes
of the Colorado River Indian Resen·ations, Arizona and California; Gila River Pima-
Maricopa Indian Community, Arizona; Hualapai Indian Tribe of the Hualapai Reserva-
tion, Arizona; Navajo Tribe of Indians of the Navajo Reservation, Arizona and New
lllexico; Salt River Pima-Maricopa Indian Community of the Salt River Reservation,
Arizona;. the San Carlos Apache Tribe, Arizona ; and the Fort McDowell Mohave-Apache
Indian community of the Fort McDowell Reservation, Arizona, filed July 13, 1956 in
Arizona v. California (U.S. S. Ct., No. 10, Original), at 7 n.4.
60 Opinion and Ruling of Special Master, Transcript 26::!8--46, .July 18, 1956.
70 Motion on behalf of Navajo Tribe of Indians of the Na,·ajo Resen·ation, Arizona, New
Mexico and Utah, for leave to inten·ene, brief in support thereof, and petition of inter-
vention, filed September 25, 1961 in Arizona v. California (t:.S. S. Ct., No. 8, Original).
See also Statement of New Mexico relating to Motion on behalf of Navajo Tribe of Indians
for Leave to Intervene, filed November 1, 1961 in Arizona v. California (U.S. S. Ct., No. 8,
Original).
71 Motion on behalf of Navajo Tribe, supra., note 69, at 2-3. See text accompanying notes
60-62, supra.
72 See Response of the United States to the Motion on behalf of the Na,·ajo Tribe of
Indians for leave to Intervene, filed Nonmber 6, 1961 in Arizona v. California (U.S. S. Ct.,
No. 8, Original). The States of Arizona and California also filed responses opposing the
Navajo motion.
"See Motions by Navajo Indian Tribe for reconsideration of its motion for lea,·e to
intervene and for order to United States to show cause why it should not be ordered to
account to the Court as to the adequacy of its representataion of Navajo interests; Brief
in support of motions, filed December 27, 1961 in Arizona v. California (U.S. S. Ct., No. 8,
Original).
74 Note that the Navajo claim to Colorado River mainstream water is against the entire
river, not just the lower basin or just the upper basin. See section III.A., supra. The
division of the Colorado River into upper and lower basins, dh·ided at Lee's Ferry, was
effected by the Colorado River Compact of 1922. Article VII of that Compact provided
that "[nlothing in this compact shall be construed as affecting the obligations of the
United States of America to Indian tribes." (The compact is reproduced immediately
following§ 45-571 of Ariz. Rev. Stat. Anno. (1956).
775
Thus the Navajo Tribe appeared to limit its claim to upper basin waters to
the 50,000 acre-feet allocated to the State of Arizona by the Upper Colorado
River Basin Compact. This is done despite the fact that the 'l'ribe's reserved rights
to upper basin waters may IJe many times that allocation. In effect, the Tribe
was agreeing to be IJound by the Upper Colorado River Basin Compact, an instru-
ment to which it is not a party and which, if applied to the Navajo Reservation,
seriously restriets the possiiJilities for future development on the Reservation."
As if the waiver was not clear enough, it was repeated in resolve clause 3:
It shall be understood that the Navajo's Tribe's promise to limit its claim
to 50,000 acre-teet of 1cater per year shall only be for the term of the life-
time of the proposed power plant, or for 50 years, whichever shall occur
first .... "
The language of the preamble further reinforced the interpretation of the
Resolution. After discussing the proposed coal-fuel power plant at Page and
Arizona's need for a constant and uninterrupted water supply of 34,100 acre-feet
per year to run it, the Council, in whereas clause 6 said:
Because the 34,100 acre-feet of water per year must come from the 50,000
acre-feet of water allocated to the State of Arizona by the terms of the
Upper Colorado River Basin Compact, the Salt River Project Agricultural
Improvement and Power District must be assured that the Navajo Tribe
wm not assert, tor the lifetime of the proposed coal-fuel power plant, or
tor the next 50 years, or whichever occurs first, claims tm· water in excess
ot 50,000 acre-teet per year ...."
This resolution, which would have the Navajo Tribe of Indians waive its
reserved rights water claim to the San Juan and Colorado River water, was
exceedingly misleading. Its deceptive nature was not only attrilmtaiJle to the
fact that there was absolutely no mention of the Navajo TriiJe's extensive rights
under existing water law, !Jut was inherent in the apparent assumption that
the Navajo Tribe is governed IJy the 50,000 annual acre-feet allotted to the State
of Arizona under the Upper Colorado River Basin Compact. It is necessary to
paraphrase the logic of the Resolution to show its deception:
1. The Navajo 'l'ribe has "the right" to the 50,000 anuual acre-feet which
was allocated to the State of Arizona under the Upper Colorado River
Compact.
2. That right was affirmed by the Secretary of the Interior."
3. The limit of the Navajo Tribe's claim to upper basin water is 50,000
annual acre-feet.
4. In order for the Navajo Generating Station at Page to use 34,100
acre-feet per year, the approval of the Navajo Tribe is necessary.
5. Since, in the upper basin, the present need of the l'\avajo Tribe is for
only 13,000 annual acre-feet and its needs during the foreseeable future
"will never exceed 17,000" annual acre-feet, its agreement to allocate 34,100
annual acre-feet to the powerplant leaves it almost enough (15,900 annual
acre-feet) to meet its foreseeable needs.
"Note pages 300-02 of the Master's Report, supra, note 31, where the l\Iaster concludes
that "United States uses In each state are limited by the apportionment to the state in
which the uses occur." He notes, howeYer, that those federal uses which constitute "present
perfected rights" are an exception to the rule. "Perfected rights" include federal!y-reserved
water rights. "Present perfected rights" are those perfected rights existing as of the
effective date of the apportionment. Thus, Indian reserved water rights to the Lower
Colorado Basin created before June 25, 1929, the effective date of the Boulder Canyon
Project Act, are not limited by the apportionment of water made by that Act (as construed
in Arizona v. California, 373 U.S. 546 (1963)). Similarly, Indian reserYed water rights
to the Upper Colorado Basin created before the effecti\'e date of the Upper Colorado River
Basin Compact would not be limited by the apportionment made by that compact. There-
fore, the Upper Colorado RIYcr Basin Compact should have no effect whatsoever on Navajo
reserved water rights while the Boulder Canyon Project Act would affect only those
reserYed rights created after the Act was passed, i.e., those resen·ed rights appurtenant
to Areas "C", "III", "0" and parts of Areas "B" and ''K". (See Appendix I.)
Note also that while the Supreme Court in il.rizona v. Calijomia accepted the 1\Iaster's
finding that " . . . all uses of mainstream water within a State are to be charged against
that State's apportionment, which of course includes uses by the United States," (373
U.S. nt 601), it did not accept the converse proposition cited above, that the state appor·
tionment limits uses by the L:nited States.
A contrary opinion was rendered by 1\Iitchell l\Ielich, Solicitor, Department of the
Interior, In a memorandum to the Secretary of the Interior dated December 10, 1969. Mr.
1\Ielich's documentation for this position is, at best, dubious, and ignores the proyisions of
the Colorado River Compact and the Upper Colorado RiYer Compact disclaiming any
effect of those compacts upon Indian water rights.
1a Emphasis added.
" Emphasis added.
78
See Resolution of the Navajo Tribal Council, No. CJY-95-66, of July 28, 1966, whereas
clause No. 10.
776
6. Hence, the Navajo Tribe retains enough of its 50,000 annual acre-feet
to meet its foreseeable future needs and gains significant value in exchange.
There are several fallacies in this logic. First, the Navajo Tribe of Indians
never did and does not now have, under the terms of the Upper Colorado River
Compact, any "right" to share in the use of Arizona's 50,000 annual acre-feet
allocation. Second, the Tribe's potential claim to water of the Colorado and
79
San Juan ,. is entirely unrelated to the Upper Basin Compact, and, at least, po-
tentially, far exceeds the amount of 50,000 annual acre-feet. Third, Salt River
Project could construct the power plant on state land at Page, Arizona, or in the
triangle of state land in the upper basin formed by the Colorado and Pariah and
the Arizona-Utah border.
Under the terms of the Upper Basin Compact, the state can use either 34,100
annual acre-feet of water· or any amount up to the total of Arizona's allocation of
50,000 annual acre-feet without ever obtaining the consent of the Navajo Tribe.
Moreover, it would appear that Salt River Project could even construct the power
plant on the Navajo Reservation and use Arizona's 50,000 acre-feet allocation at
the plant without the Tribe's consent. so
80
Fourth, whatever the Tribe's present consumptive use may be, to state its
future needs to be 17,000 annual acre-feet is to utterly ignore the aridity of the
Reservation and limit the Reservation to its present state of economic develop-
ment, because any agricultural use, economic development, or population growth
depends heavily upon the availability of water. Moreover, water to which the
Tribe could acquire title, may be salable. In other words, the Tribe's foreseeable
future water needs are inestimable, but certainly far more that 17,000 annual
acre-feet.•• In a very real sense, the Tribe "needs" all the water it can obtain.
acre-feet."
The motivation to obtain the Tribe's waiver of its reserved water rights claim,
and the reason for the misleading use of the 50,000 acre-feet terminology can be
supposed with some degree of certainty, especially when it is known (as it is)
that the Resolution was drafted by the Department of Interior and Salt River
Project and that its passage was promoted by both, with the assistance of the
Executive Director of the Upper Basin Commission.S:
Commission."
All of the water of the Colorado River System has been allocated, first, as
between the upper and lower basins and :\Iexico,
:uexico, and, second, among the states of
basin.'' Both the Colorado River 84
each basin." 84 and the Upper Colorado River
River..,
os Com-
pacts explicitly decline to affect Indian water claims. The Navajo Tribe's re-
served water claim casts a cloud upon the water titles of every state -state in the
Colorado River Basin. .If the Tribe were to assert its claim, it would eclipse
Arizona's 50,000 acre-feet allocation, and, worse, from the point of view of all
the Colorado River Basin states, would place a large Navajo claim prior to the
states', requiring curtailment of every state's allocation.'·
allocation.••
,.
79 Recall that the Little Colorado River drains Into the Lower Colorado Basin rather
than the upper basin.
80 "If any thermal generating plant referred to in subsection (b) of this section is located
8.
In Arizona, and If it Is served by water diverted from the drainage area of the Colorado
River system above Lee's Ferry, other provisions of existing law to the contrary notwith-
standing, such consumptive use of water shall be a part of the 50,000 acre-feet per
annum apportioned to the State of Arizona by Article III (a) of the Upper Colorado River
Basin Compact (63 Stat. 31)." Colorado River Basin Project Act § 303(d), 43 U.S.C.A.
§ 1523(d) (Supp. 1971).
81 The preseuce
81 presence lu
In whereas clause 8 of the phrase," ... during the foreseeable future
fu ture the
yearly usage of the water on the Navajo Reservation will never uever exceed 17,000 acre-
feet . . . . ", Is remlnisceut
reminiscent of Arizona's contention in Arizona v. Oalifornia,
California, at 373 U.S.
600-10, that the proper measure of Indian water rights should be "reasonably foreseeable
needs." The Court, however, approved the Master's more liberal formula based upon
practicably irrigable acreage, whether In fact the land was being Irrigated or not.
82 More difficult to understand. Is the motivation of the General Couusel
82 Counsel of the Navajo
Tribe. The same Interior Department attorney referred to In note 45, infra, said that the
tribal General Counsel gave his full concurrence because, like Interior, he could not see that
the Tribe had use for more than 13,300 acre-feet.
8'83 In fact, the allocations made exceed the amount of water normally available in the
~g~~'?-10. River system. H. Rep. No. 1312, 1968 U.S. Code Cong.
~g~~'?-1o. Congo & Admin. News 3666,
84 Colorado River Compact, Article VII, reprinted following Ariz. Rev. Stat. § 45-57l.
.. 45-571.
8.
85 Upper Colorado River Compact, Article XIX, reprinted following Ariz. Rev. Stat.
§ 45-58l.
45-581.
8.
80 § 13(b) of the Boulder Canyon Project Act (43 U.S.C. § 617(b) provides:
The rights of the United States In or to waters of the Colorado River and its
tributaries howsoever claimed or acquired, as well as the rights of those claiming
under the United States, shall be subject to and controlled by said Colorado River
Compact.
However, the Colorado River Compact, In Article VII, states: "Nothing in this compact
shall be construed as affecting the obligations of the United States of America to Indian
Tribes."
777
Concerning Arizona's 50,000 acre-feet Upper Basin Allocation, Article VII of
the Upper Colorado River Compact provides:
"The consumptive use of water by the United States of America or any
of its agencies, instrumentalities or wards shall be charged as a use by the
State in which the use is made .... ""
Article XIX provides, in relevant part, "Nothing in this Compact shall be con-
strued as (a) affecting the obligations of the United States of America to Indian
Tribes .... " By virtue of Winters and the modern reserved water rights doctrine,
the Navajo Tribe has a special claim to Colorado and San Juan River water,
wholly apart from and parallel to the states' claims, with priority dates of 1868
and 1884. But Arizona, as a signatory to the Upper Colorado River Basin Com-
pact, has agreed that any Navajo Indian water use will proportionately reduce
its Compact allocation of 50,000 annual acre-feet. In other words, Arizona has
agreed to charge Navajo water use against its own upper basin allocation. It
has not, and could not have, agreed that Navajo water rights in the upper basin
would be limited by that allocation."
We have been told that Rep. Wayne Aspinall (D-Colo.), Chairman of the
House Committee on the Interior and Insular Affairs, has n1ade it clear to the
Department of Interior and Salt River Project that, unless a waiver of the
Navajo Tribe's upper basin water claim is obtained, he will have the CAP legis-
lation killed.•• l\Ir. Aspinall, of course, is exceedingly concerned about protecting
the upper basin allocations. The average annual main channel flow at Lee's Ferry
is about 13 million acre-feet. 90 By the terms of the Colorado River Compact, the
upper basin is obligated to deliver an average of 7.5 million acre-feet to the
lower basin at Lee's ]'erry.•' Each of the upper basin states has water resource
projects in planning to use its allocation. If the Navajo Tribe \vere to perfect
any substantial claim to upper basin water, it would proportionately reduce the
allocations of all upper basin state allocations and jeopardize all upper basin
water use projects.
Thus, Arizona and the other Colorado River Basin states have a very great
interest in having the Navajo 'l'ribe waive its reserved water rights claim in
exchange for the enumerated consideration: the construction of the power plant
on Reservation property, Navajo employment, the purchase of Navajo coal,
electrical power sales, and $125,000 to the Navajo Community College. With the
existence and significance of the waiver concealed anll the consideration (while
indefinite in ways later to be discussed) shown in bas belief, the erroneous im-
pression is conveyed that the Tribe is giving up little or nothing to obtain great
economic benefits, when exactly the opposite is quite likely to be true.
In view of the great potential value of the Tribe's water claim, even assuming
they could afford to waive it for money, or immediate economic benefit,•' the con-
sideration given by the utility consortium is tenuous and comparatively meager.
Resolve section 2A requires the Salt River Project ( SRP) manager of the
Page plant, to prefer Navajos for employment at the power plant and at the
Black ;\fesa coal mines. The employment of labor at a modern power plant is
small indeed., and SRP does not control the employment at the coal mine, which
is operated by Peabody Coal Company.
Section 2B obligates SRP to purchase all of its coal at the Black 1\fesa mines,
more to the advantage of SRP than to the Navajo Tribe. No amount of coal or
money is specified.
81 Ariz. Re\·. Stat., § 45-581. The Navajo Tribe is a "ward" of the United States. United
States v. Kagama, 118 U.S. 375, 383-84 (1886) ; Ohm·okee Nation v. Georgia, 30 U.S. (5
Pet.) 1, 17 (1831).
"See note 75, supra.
•• Conversation between Theodore R. l\Iitchell, former Director of DNA, and an attorney
with the Department of the Interior, May 13, 1969.
00 Meyers, supra, note 20, at 2 .
., Article III(d).
9
' Despite an extensive ground water development program carried on over a number of
years by the Navajo Tribe, the Tribe has not been able to discontinue its Emergency Water
Hauling Program. Sec, e.g., Navajo Tribal Council Resolution CJN-66-69 (June 27, 1969),
appropriating additional funds for the program after the previously appropriated funds
for the 19tl9 lisen! year program had been exhausted.
93 According to officials of the Arizona Public Service Company which Is involved in the
power project along with Salt River Project and other utilities, the Page generating station
and the expansion of the Four Corners generating station will provide new permanent
employment for 200 persons. •·Navajos Appron Power Project," Gallup (New Mexico)
Independent, May 29, 1969.
781
The intricacies of Indian water rights are quite complex. It is quite easy to Sl:'e
how the Tribal Council could be misled into exchanging extremely valuable watl.'r
rights 110 for extremely meager consideration. 'l'hat the then General Counsel llf
the Tribe and the Department of the Interior did not challenge the efforts to
deprive the Navajos of their water rights is less understandahle. 111
IV. CONCLUSION
This paper has dealt in detail with the overall subject of Navajo water rights.
It has not covered, however, several related problems, to which equally lengthy
studies could lJe devoted. Principal among these is the Navajo Irrigation Project
and the related San Juan-Chama Diversion Project. These projects, which are
participating projects administered lJy the Bureau of Reclamation under the
Colorado River Storage Act,"' were first authorized in 1962!" The Navajo
Irrigation Project, ostensibly benefitting primarily members of the Navajo TrilJe,
was apparently funded in exchange for the Tribe's agreement to share water
shortages with the Rio Grnnde Valley, which receives San Juan River water by
means of the San Juan-Chama Diversion Project."' While construction of the
San Juan-Chama Diversion has been rapid. the same has not been true of the
Navajo Irrigation Project.'"
A second problem related to Navajo water rights derives from the }lumping of
2,400 acre-feet of water per year from deep wells to operate the coal slurry pipe-
line from Black 1\Iesa to the Mojave generating station. This quantity of water
is small in comparison with Navajo water rights generally and adequate steps
appear to have been tal,en to vrotect shallow wells on Black )lesa!" However,
the water lJeing drawn from the Navajo Sandstone formation underlying Black
:Mesa may affect the quantity of water availalJle from deep wells on other parts
of the Reservation, particularly in the Kayenta area. 111 In addition, there is
some question as to the wisdom of using the very high-quality Navajo Sandstone
water for what is essentially flushing purposes."•
The question of Navajo water rights is complicated, hut of inestimable im-
portance. Immediate remedial action should be t.'lken to recover the extensive
water rights belonging to the Navajo Indian Reservation. Special water and soil
conservation experts and water lawyers should he engaged to define, assert and
affirm the Reservation's invaluable rights to the use of both Upper and Lower
Colorado River Basin water resources.
Prepared by :
110
DANIEL H. 1\fACl\:IEEKIN
Aprlz 1971.
no That these water rights are lnvnluable wns confirmed In nn article by William Greider
In the Washington Post: "Curiously, one source who agrees with . . . [t)he contention
that the Navajos [by passing Resolution CD-108-68] ga,·e up something of ynlue Is Rep.
Aspinall's stat!' man on the House Interior Committee." "A Tribal Water Fight," supra,
note 105, at col. 5.
m See note SO, supra.
"'Act of April 11, 1956, 70 Stat. 105, codified at 43 U.S.C.A. § § 620 et. seq.
113 Act of June 13, 1962, Public Law 87-483, 76 Stat. 96, codified at 43 U.S.C.A. §§ 615ii
et. seg.
114 "Water Waiver Issue Recalls 1966 'Big Water Grab'," Gallup (New Mexico) Inde-
pendent, June 3, 1969, at p. 1.
115 Jd. See also Navajo Times (Window Rock, Ariz.), August 1, 1968, at p. 2 (editorial).
The Independent story also alleges that the San Juan-Chama diversion tunnels were
"quietly Increased from a carrying capacity of 235,000 acre-feet of water annually to
686,000 acre-feet annuallY."
116 John J. Harrigan, "Deep-well Drillers Assure Critics Black Mesa Water Table Unaf-
fected," Arizona Republic (Phoenix) March 22, 1971, at p. 18.
111 If the deep wells do affect the water supply available to other areas of the Reser-
vation, the Secretary of the Interior allegedly may require that the mine operator pro-
vide water to those areas from other sources or, alternatively, require that water for the
coni slurry be obtained from other sources. Bechtel Corp., Status Report, Environmental
Planning for the Navajo Generating Station (Sept. 1970). An examination of the mining
lenses reveals no such obligation on the part of the mining company. See Mining Lease
Contract No. 14-20-0603-8580 between Sentry Royalty Company and the Navajo Tribe,
entered Into February 1, 1964 ; Mining Lease Contract No. 14-20-0603-9910 between
Sentry Royalty Company and the Navajo Tribe, entered into June 6, 1966. These contracts
have been assigned by Sentry to the Peabody Coal Company. For some illumination on
the reasons for executing two contracts, see Resolution of the Navajo Tribal Council No.
CF-16-66 (February 18, 1966). There may be additional instruments of which we are not
aware that do Incorporate the water supply gurantee.
"'Interview with Mr. Vern Taylor, geologist, on Apri117, 1970.
119
This paper represents a substantial revision of an earlier paper prepared in August
1969 by Theodore R. Mitchell, Michael Gross and Daniel H. MacMeekin.
Partial Excerpts from Videotape of May 25, 2022 Hearing

Recesses have been edited out of the videotape.
[Running times are to the edited videotape. Emphases are added.]
[01:12] Bacon – This is a show cause hearing directed at Mr. Marshall. Before we begin I
need to ask a couple of preliminary questions of Mr. Baker. Mr. Baker, the court needs to
understand what your role is in this proceeding. ...
Baker - Chief Justice, I am representing Mr. Marshall. Mr. Marshall has submitted those
pleadings because he is in the best position to be able to tell the court --
Bacon - Mr. Baker, I believe your intentions are misguided.
Bacon – ...we will proceed with the idea today... but he is not licensed to speak as a lawyer
so he will have to make his presentation to the court under oath. Are you amenable to that
Mr. Baker?
Baker – Yes I am.
[03:51] Marshall – Your Honor, might I confer with my lawyer about that? This is a
curveball.
Bacon – You may. Briefly.
Marshall – I have to figure out how to do that. Just a second.
Bacon – We’ll take a 5 minute recess.
[recess]
[04:31] Bacon – Mr. Baker, where are we?
Baker – Mr. Marshall would like to say something.
Bacon – Mr. Marshall, this begs the very predicament were in. What would you like to say?
Marshall –. . . . As we notified the court this week, I am the one who is going to be
presenting. We received no objection from anyone. So I of course am prepared to address
the court’s questions, Mr. Baker is not. In addition, I believe that I actually am entitled to
represent myself, whether I have, and to speak on my own defense against the contempt
charge. But the bottom line is, we can’t proceed on 30 seconds notice under the court’s
terms. We would need to adjourn, and I’ll confer with my counsel and figure out what to
do. But I
[05:40] Bacon – Mr. Marshall, I don’t think you’re listening. You can present to the court, I
made that clear, but your presentation will be made under oath because you are not a
currently licensed lawyer. But you can make the presentation, it just has to be under
oath.
[06:03] Marshall – Will it be subject to cross-examination, rebuttal, or any of the usual

evidentiary safeguards?
[06:12] Bacon – No Sir..............[more remarks]
[07:17] Marshall – Justice, let me point out the obvious due process and confrontation
problems involved in this procedure, where you say that it won’t be subject to the Rules
of Civil Procedure, or rebuttal, or, by the way, witnesses. I would note for the record
that -
[07:31] Bacon – Mr. Marshall, if you are going to make arguments, it will be under
oath. I am prepared to put you under oath.And then when it’s your turn, you can make
whatever arguments you like to the court, subject to the clock running 20 minutes. So if you
want to say anything else to the court right now, anything at all, it needs to be done under
oath. Are you consenting to be put under oath?
[08:07] Marshall – Justice, no. I am reserving my objections to this procedure, this snap
procedure, for federal court. And rather than -
[08:19] Bacon – All I needed was a no. You are not here to argue your case without being
put under oath...
[08:34] Marshall - Neither Mr. Baker nor I -
[08:43] Marshall - Excuse me, Your Honor, I do have a due process and First Amendment
right to speak briefly in my own defense, and I will say the following: Neither I nor Mr.
Baker are prepared or able to proceed under the procedures which you just outlined about
five minutes ago. And therefore, Your Honor, I will seek redress in the federal court. And
I’d ask the Court to adjourn the hearing so that we can get meaningful federal court review,
because this is a violation of due process. It’s also a violation of the right --
Bacon - [interrupts]
[09:19] Marshall – Your Honor, we will not proceed because we can’t proceed, given what’s
happened.
[Court takes recess]
[09:40] Bacon – I have asked our IT folks to mute Mr. Marshall.

Exhibit 18 Videotape of Supreme Court Hearing on May 25, 2022 (will be provided
later).
Exhibit 19 Aldus audio recordings (will be provided later).

STATE OF NEW MEXICO

SAN JUAN COUNTY
ELEVENTH JUDICIAL DISTRICT COURT
STATE OF NEW MEXICO, ex rel. CV-75-184

STATE ENGINEER, Hon. James J. Wechsler
Presiding Judge
Plaintiff,
SAN JUAN RIVER STREAM SYSTEM
v. ADJUDICATION
THE UNITED STATES OF AMERICA LA PLATA RIVER SECTION
et al.,
Defendants,
vs.
THE JICARILLA APACHE TRIBE and the

NAVAJO NATION,
Defendant-Intervenors.
____________________________________
STATUS REPORT ON COMPLETING THE SAN JUAN RIVER STREAM SYSTEM

ADJUDICATION
Pursuant to the Court’s October 18, 2016 Order Regarding Proposal for Proceeding in
the Adjudication, and February 8, 2017 Order Denying Motion for Extension of Time to File
Status Report on Completing the Adjudication of the San Juan River Stream System
Adjudication, Plaintiff State of New Mexico, (“State”) provides this Report on its plan for the
completion of the remaining sections of the San Juan River Stream System Adjudication.
In the State’s FY 2016 Rule 1-071.3 Report, the State identified the tasks that have been
completed in the San Juan adjudication, those that are in process, and those to be completed. See
Notice of Filing Rule 1.071.3 Report (September 29, 2016). In the face of possibly permanent
reductions to its budget, the State’s priority is to finish adjudicating those claims that are already
pending before the Court instead of beginning a new section. This means that the State’s
priorities are completing the adjudication of surface water rights in the La Plata section,
defending the Court’s orders adjudicating the Navajo Nation’s water rights in pending appeals,
and resuming the already scheduled proceeding on the Ute Mountain Ute’s water rights claims.
Under the Preliminary Scheduling Order for the Adjudication of the Water Rights of the Ute
Mountain Ute Tribe entered on August 4, 2009, the parties must file a joint motion for a
proposed procedural order on March 30 2020, and begin preparing expert reports. This
proceeding will require significant attorney and technical resources from the State.
The State is also required to allocate resources to the appeal of the Navajo Nation’s water
rights, currently pending before the Court of Appeals, that will likely continue before the New
Mexico Supreme Court. These appeals also require participation by the State, and the allocation
of resources.
As the State reported in its Motion for Extension of Time, there is a very real possibility
that a reduction in appropriations may force the State to suspend prosecution of some ongoing
adjudications, including further sections of the San Juan River Adjudication. It would not be an
efficient use of the State’s resources to begin the hydrographic survey work for a new section in
the face of significant uncertainty of sufficient resources being available to complete the survey,
which would grow stale over time. However, to address the Court’s request, the State has
estimated the time required to adjudicate the remaining sections of the San Juan Basin, which are
the (1) Animas, (2) San Juan main stem, (3) Los Pinos and Navajo Rivers, and (4) the lands and
water rights within Hammond Conservancy District, based upon the time that has been required
to adjudicate surface water rights in the La Plata section. See Scheduling Order Governing
Adjudication of Irrigation Water Rights in the La Plata River Section (filed February, 2006).
2
A review of the time it has taken the State to adjudicate approximately 430 irrigation
subfiles in the La Plata section, with varying levels of resources, shows that it took
approximately two years to prepare the hydrographic survey section, twelve years to adjudicate
430 irrigation subfiles, and will take an additional two to three years to complete inter se and
enter a judgment and decree. There are approximately 8,600 water rights remaining in the San
Juan Basin, for an estimated 30,800 acres. The hydrographic survey of that many acres would
require a minimum of 8 years. If the State were able to adjudicate the subfiles at the same rate as
in La Plata, which is an average of 36 subfiles per year, it could take over two hundred years to
re-adjudicate the remaining surface water rights in the San Juan. The inter se proceeding for
each of the remaining four sections would also require an additional eight to ten years.
The chart below captures the tasks for completing the next section of the adjudication, the
San Juan section surface water rights.
Category Task
A. Evaluation of Surface Water
Uses in the San Juan Section
1. Identify claimants and existing
surface rights, including field visits,
evaluation of county records to
gather information and prepare
proposed subfile orders
2. Preparation of hydrographic
survey maps and report depicting
surface water rights
3. Publication and filing of
hydrographic survey maps and
report
4. Motions for entry of procedural
order to govern adjudication process
5. Joinder of all known claimants
and service of packet with pertinent
documents, including proposed
consent order
6. Publication of notice to serve
known but not located claimants
7. Publication of notice of deadline
for unknown claimants of interest to
file water rights claims
8. Consultation period, public
3
meetings, and field visits with

claimants regarding proposed
consent orders
9. Litigation with claimants who file
answers objecting to proposed
consent orders
10. File motions for default
judgment against unknown
claimants of interest and other who
do not respond to publication notice
and/or motions for judgment on any
remaining subfiles
11. Orders entered on all subfiles
B. Preparation of Maps and
Appendices for Inter Se on Surface
Water Rights
1. Preparation of draft final
judgment and decree, including
technical and administrative work to
compile description of water rights
and mailing list
2. Review of all orders to reconcile
State’s internal database and maps
3. File motions to amend/correct
subfile orders, if necessary
C. Inter se proceedings and entry of
Final Decree on Surface Water
Rights
1. Filing of motion for procedural
order for inter se and entry of final
judgment and decree
2. Briefing on motion for procedural
order and entry of procedural order
3. State files motion to enter FJD
4. State makes FJD available for
public inspection, including
addendum summarizing all water
rights and forms for objection Notice
and mailing of notice of draft final
judgment and decree and inter se
process
5. State files updated service list
6. State mails and publishes notice
of inter se proceeding; files Proof of
Publication of Notice and certificate
of service
7. Deadline for filing inter se
objections
8. State files and posts report
summarizing inter se objections and
mails objections to water right
owners
9. Mandatory scheduling
conferences on inter se objections
4
10. Court conducts proceedings on

inter se objections
11. Entry of order resolving inter se
objections
12. Briefing on Motion to Enter
FJD
13. Court enters Final Judgment and
Decree on Surface Water Rights in
the San Juan section
Given the limited resources of the State and the projected length of time required to
continue the adjudication under existing procedures, the State’s priority is to devote its available
resources to evaluating alternative approaches to streamline the adjudication process, rather than
to commence planning under currently required approaches.
_/s/ Arianne Singer

Arianne Singer
Kelly Brooks Smith
Gary Storm
Special Assistant Attorneys General
Office of the State Engineer
P. O. Box 25102
Santa Fe, NM 87504-5102
505/827-6150; 505/827-3887 (fax)
CERTIFICATE OF SERVICE
I certify that I have caused a copy of the above to be served by E-mail to all Counsel on
the Electronic Service List for D-1116-CV-7500184, and to wrnavajointerse@nmcourts.gov, on
February 14, 2017.
/s/ Kelly Brooks Smith

Kelly Brooks Smith
5
Page 1
BEFORE THE DISCIPLINARY BOARD OF THE SUPREME COURT

THE STATE OF NEW MEXICO
IN THE MATTER OF
VICTOR MARSHALL, ESQ.,
an attorney licensed to
practice law before the Disciplinary No.
courts of the State of 05-2018-782
New Mexico.
VIDEO DEPOSITION OF HONORABLE JAMES J. WECHSLER

September 21, 2018
9:30 a.m.
408 Galisteo Street
PURSUANT TO THE NEW MEXICO RULES OF CIVIL

PROCEDURE, this deposition was:
TAKEN BY: MR. JEFFREY L. BAKER
Attorney for Victor Marshall
REPORTED BY: MABEL JIN CHIN, NM CCR #81

Bean & Associates, Inc.
Professional Court Reporting Service
201 Third Street Northwest, Suite 1630
(1060N) MC

Page 59
1 this exhibit that surprises you in terms of what

2 Peterson Zah was saying at the time?
3 A. Um -- no. I mean, I don't recall having
4 such a conversation with him but, no, I'm not
5 surprised that he would make -- make such a statement.
6 Q. Do you know if Mr. Zah ever said anything
7 similar to this that's shown in Exhibit XX while you
8 worked with DNA?
9 A. Just -- you know, I don't remember anything
10 specifically about the Supreme Court, but certainly he
11 would have talked about the importance of tribal
12 sovereignty, so something similar to this, sure.
13 Q. And would have said it to an audience of DNA
14 lawyers and support staff?
15 A. It wouldn't be unusual for that to have
16 occurred.
17 Q. Okay. In this case I have been making an
18 assumption that -- when I say this case, the San Juan
19 adjudication -- that you did not disclose to the
20 lawyers or the parties that you had worked at DNA. Is
21 that accurate?
22 A. That's accurate.
23 Q. Did you consider making such a disclosure?
24 MR. BIERNOFF: I'm going to object, counsel,
25 to the extent that you are asking Judge Wechsler about

Page 60
1 his deliberative process as a judge, which is

2 impermissible, as you know.
3 Q. Well, notwithstanding the objection, are you
4 willing to answer the question?
5 A. It never occurred to me.
6 Q. Okay.
7 A. Now, I should say, of course, that, of
8 course, I consider if there are any reasons why I
9 can't be fair or impartial in a particular case, it
10 did not occur to me in that consideration.
11 Q. And I appreciate the fact that -- I have
12 never been a judge so I have never had to go through
13 the judicial deliberative process. That's something
14 that is unique to people who have been judges. And
15 I'm going to ask a question and I hope you are not
16 offended by the question.
17 You have a son named Jeff?
18 A. I do.
19 Q. He is a lawyer in Santa Fe?
20 A. Yes, sir.
21 Q. And my understanding is he has a contract to
22 do work for the Office of the State Engineer?
23 A. Yes, sir.
24 Q. Okay. The Office of the State Engineer is a
25 party in the San Juan adjudication?

COMMUNITY EDUCATION - PREVENTIVE LAW LEGAL SERVICES
Vol. II, No. 8, March 06, 1970
Leo Haven, (above), is the new DNA

Director. Peterson Zah, (right), is
the new DNA Deputy Director.
The DNA Board of Directors hired Mr. Leo Haven, l·; avaj o, as
the new DNA Director on February 28, 1970, and confirmed Peterson Za~,
Navajo, as the DNA Deputy Director. Both Navajos were agreeable sel-
ections of the DNA Board of Directors. Fourteen members of the Eca=~
of Directors were present, of these fourteen, eleven were Navajos re-
presenting their people from the five agencies on the Navajo Reserva-
tio n. The Board had received advice from OEO and changed the D~A ~~- - ·
laws before electing Mr. Haven as the n ew Director. REC E ' . :. u
I ICQ.&Ov
~
RFP No.4
Hr. !·:itchell, :.::::::- ::~-:. :ire.:~c:-, ~r. Eav~n has been quoted as saying,
v:ill s-:ay with -t::: .::-;.:.:-.:.::.:.~io:-1 by "I \dll co my best to \"ork with DNA
a =
ing .nore \vor~ i:-. ~~.:::.: :_:::_ :ceral
urts and le~al re;:-:£:~-:.:.~i~~s for
the Na•.oajo peo?l:. ::-.: :=..::=:. a: Dire.:-
Board a= Directors, DNA staff, and th.
l\avajo peo?le. I believe in the prin:
c~p~es of equality in humans, civil
or
e:.
tors ·indica ted t!::y ••=-~~==- -== keep !>~. r~gn~s, understanding of laws, equal a
z.ti tchell on the s~aff ==~·.:se of t::e protection of laws for everyone, rioh~
outstanding work t: tas =-=~= and ~ill to repre~entation, and legal educatio~ I! cF :
continue to do so f:::- -;:::: ~~a-;-ajo peo- for the young and old. Everyone shou1~ t
ple. .!-!r. Mitchel: k:p--: ~= ;-age a~a
real purpose of r::~~; s:::s:;:- === the
be encouraged to have respect for la1::: J J.! "
and every person has a right to plect~ - ..
benefit of the 5a~ajcs :sp::ially
through the hard ti=es.
behalf of the Nav.:..jo p~:ple.
== ~as do~e a
great and highly co=::::::::.:..=·2.e job on
innocen-: until proven guilty beyond
any reasonable doubt regardless of the
circ~stances. No person is above the
law, no person is below the law, no
'f.
t..:
tr
".:.
I
person is destructive of the law and sc
Leo Haven, the !;:;..· Di::-;::--:c::-, w.-as born no person hides behind the law." H
in a hogan, grad~a~=~ ==c= ?~ve~siCs
* * * *Director,
* * Deputy * * * ! !".
City College, Ri~::-sife, ~i~fornia, Peterson *Zah, is ori- F"
where he earned P~s ~- ~- D~=ree. ~= ginally from Low Mou_~tain, Arizona. He a~
obtained his B.A. De;:-:: ~ Sociolo~ was born there and raised by tradition· s:
from the University of ~=~~=s, Rec- al faKily. He graduated from Phoenix ta
lands, California. Ee ~~ soKe gra- Indian School in 1958 and continued his irr
~uate.work a~ the.~~;o-:rsi~J of Cal- education at Phoenix Junior College, ur
~forn~a at R~vers2ae. Y~. Eaven ~ork where he obtained his A. A. degree. He tc
ed tlfirteen years ·..·i tb -=::e
Service during ~hich ~~~= ~= received
= ederal then er~olled at Arizona State Univer~
sity and received his B. A. Degree in
wr.
ii:'
Q veral outstandin; aR==~=, such as,
e Superior Perfc=-~== a=~ cash a-
Education in 1963. ~r. Zah was verv
active in field athletics during thes~
t~
wa
wards from the BL~. :e ~==ked five years, organizing and playing basket- lc
years for the l~avejo :-=-D:-e as a \\..,.,- ball.
fare ~orker, Super;is:::- c= Kelfare L<
and Director of Public s~.:=es. ?rom
1965 to 1967, he -..·~r:C:;::. ·.-i .... h 0!20 as
Project Coordina~or ~~ ~i=ector of
Local Community De~el=p~e=t Proqran.
During his time at 0~\3J, ~e ceveloped
He worked at lVindow Rock High School
as a Vocational Education Instructor
for ~~sa Redevelopment Administration
in 1964. He then became a constructi~
est;~=tor for the Navajo Tribe \'lith
I h
jc
P?
.;;::
c:-,
the Alcoholism Pr~~~, •~ote propos- Design and Construction. a-:
al for the $2,19~,5:2, Ec~ Improve- !:1
ment T.=aining Pro~::.= -t =:Z:?). Ee In 1965 he ~as called back to his alma :o_
\·/rote several o't.~e= ;::-::je=-:.s for 0!~0 rr~ter at Arizona State University as ...
~ ::
and assisted in t::s -cre::=.=a-=.:.on of D!(A instru::-:or and supervisor for VISTA
~r~--;- -v~ ==\·~~ rc- Pro~ra:::. He helped train volunteers t~ i:.:.
L =gal
-
Serv;ce-
.. :!1 - - r.... =- -. .. - . -- ---- - -
serve 0:1 the Indian reservations for i ::
ceived Outstand~n= ~is~i=~;ishec Se:--
vice ;..·•.;ards fro~ t1:e r::-;-:.:c ~ribe a.."ld approxL-..ately two years. VISTA is a cc · ...
!-- -..
., _
for ~ork in Alcch~lis~. E: ~s a pone~t to OEO anti-poverty pro~ram. ·-
!'r
School Board Trus~== c= ni=cj~ ~ock
School District *2, a= c==~=~al of tte On Xav 15, 1967, he became Assistant r.:.:
Navajo Capitol Yo~~ 3:====-ll Le=~~e; Direc~or of Dinebeiina Nahilna Be Ag.3d' ·
member of America=· E·~::s ;ounda- tahe Legal Services Program. In thiS 7I ~
tion, ~·;a tiona! Cc-==t:.:l.:. ~~- ::•:lop=.en-:, position he practiced law in tribal
... . ;
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Arizona Boys Ran=:. a:.f A!===" Rock cou.=ts by taking all appellate court -
~irs~ Bap~ist ~~~~=~. Ee .:.s =arried cases for D~;.;. He also worked ,.,i th ~j
~nd n:s n~ne en~ ~ ===~. D~A 7ribal Court Advocates in their
trainir.; and participating with them
in cif=icul t tribal court li tiga tion 5 . l
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CONSTITUTIONAL AMENDMENTS PROPOSED

., BY THE LEGISLATURE IN 1977 AND 1978
ARGUMENTS FOR AND AGAINST
New Mexico Legislative Council Service

334 State Capitol
June, 1978
CONSTITUTIONAL AMENDMENT 2
1 A JOINT RESOLUTION
2 PROPOSING AN AMENDMENT TO ARTICLE 6, SECTION 15 OF THE CONSTITUTION OF
3 NEW MEXICO TO ALLOW CERTAIN RETIRED JUDGES AND JUSTICES TO BE APPOINTED

4 TO SERVE AS DISTRICT JUDGE PRO TEMPORE.
5
6 BE IT RESOLVED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
7 Section 1. It is proposed to amend Article 6, Section 15 of the
8 constitution of New Mexico to read:

11
9 A. Any district judge may hold district court in any county
10 at the request of the judge of such district.
11 B. Whenever the public business may require, the chief jus-

12 tice of the supreme court shall designate any district judge of the
13 state, or any justice of the supreme court when no district judge may be
14 available within a reasonable time, to hold court in any district, and
15 two or more judges may sit in any district or county separately at the
16 same time.
17 C. If any district judge is disqualified from hearing any
18 cause or is unable to expeditiously dispose of any cause in the dis-
19 trict, the chief justice of the supreme court may designate any retired
20 New Mexico district judge, court of appeals judge or supreme court
21 justice, with said designees' consent, to hear and determine the cause
22 and to act as district judge pro tempore for such cause.

23 D. If any judge shall be disqualified from hearing any cause
24 in the district, the parties to such cause, or their attorneys of re-
25 cord, may select some member of the bar to hear and determine said
- 8 -
1 cause, and act as judge pro tempore therein."
2 Section 2. The amendment proposed by this resolution shall be sub-
3 mitted to the people for their approval or rejection at the next general
4 election or at any special election prior to that date which may be
5 called for that purpose.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
- 9 -
Brief Analysis:
Constitutional Amendment No. 2 would permit the chief justice of
the supreme court to designate any retired justice or judge of New
Mexico to act as a district judge pro tempore in a csuse
cause where the
regular district judge is disqualified from hearing the cause or is
unable to expeditiously dispose of it.
Arguments For:
1. This amendment to the constitution is badly needed in order to
remove large backlogs on a district court docket. In addition, when a
district judge has been disqualified, it is sometimes difficult to find
an alternate judge from another district to hear the case, causing even
more delay. This constitutional amendment allows for additional judges
to be used in order to properly hear all pertinent cases and provide as
fair and equitable hearing for all citizens who enter the judicial
system.
2. The state has a great deal of judicial talent that is retired.
Many years of experience on the bench should not be wasted, especially
when a retired judge can fill in when a judge has been disqualified or
when a judge's docket is very heavy, resulting in a long wait, expensive
to litigants and
snd taxpayers alike. The only obstacle to the use of re-
tired judges will be removed by this amendment.
3. Use of retired judges and justices to handle backlogs and cases
where a particular judge has been disqualified is more sensible and con-
siderably less expensive than creating additional judicial positions.
It makes good economic sense to utilize retired judges within the ju-
dicial system, when and if the need arises. Rather than provide for
full-time additional judges for those judicial districts with period-
ically overcrowded dockets, under the provisions of this constitutional
amendment, additional district judges may be provided when necessary.
Full-time judges would be an unneeded burden on the taxpayers who would
have to bear the costs of additional permanent full-time judges, staff
and facilities.
4. The use of retired judges to solve the judicial problems of
overcrowded calendars or disqualifications of judges is a recognition of
-w-
- 10 -
the increased ability and efficiency of a jurist that only comes after
actual experience. Retired judges are a resource of the state that
should not be ignored; this concept is in line with the national policy
of utilizing older citizens for the good of society instead of forcing
them into permanent retirement.
5. When a judge is disqualified, the delay in waiting for an
available replacement through appointment of a judge from another dis-
trict is further complicated by the burden placed on the district court
calendar in that other district. The juggling of judges from one dis-
trict to another is a costly and inefficient method of solving the
problems related to disqualification.
Arguments Against:
1. The fact that a person has served as a justice or judge doesn't
necessarily mean that he is still qualified to preside in court. Such
a retired person is not likely to have continued his professional
education, nor has his retirement usually been conducive to retaining a
high level of judicial competence. In addition, a person who has re-
tired may have done so because of physical or mental infirmities. It
would be much better to provide for additional full-time judges to
csse backloads or to fill in when as judge has been disqualified.
handle case
2. The proposed amendment leaves the appointment of the retired
judges up to the chief justice of the supreme court. It would seem that
this is vesting a great deal of power in this individ
individ~. It would have
hsve
been far better to have placed the selection and appointment in a spe-
cial panel composed of several types of judges and justices, or at the
least in the supreme court itself. The political process in New Mexico
provides for the election of district judges. This amendment is con-
trary to constitutional intent by providing that, under certain cir-
• cumstances, district judges may be appointed by the chief justice of the
supreme court.
3. Judicial retirement annuities are the most highly paid pensions
in state government. This amendment is merely a method to provide a
contract income for those judges who have either chosen to retire or who
were retired by a vote of the electorate. It is
ia entirely possible that
- 11 -
a judge who was voted out of office by the people due to incompetency
would be eligible to be appointed to serve again as a district judge.
4. The use of retired judges should be subject to review regarding
their qualifications and mental capabilities. Since there is no age
limit expressed in the amendment,
amendment. it is possible that a senile judge may
be appointed out of past friendship or present financial need without
regard to the rights of the litigants.
5. The mere fact that a person has served in the past as a dis-
trict judge is not a guarantee of his ability to preside over judicial
proceedings. The chief justice might be obligated to choose retired
judges regardless of their health,
health. mental capacity or ability to pre-
side. It would also mean that only those retired judges who were no
longer able to practice law or make a living outside the bench would
form the panel from which the substitutes were chosen.
- 12
u -
Paul Fyfe, Chief Staff Attorney
Paul Fyfe graduated from Harvard Law School, cum laude, in 1981. After graduating,
he lived for five years in Crownpoint, New Mexico, on the Navajo Reservation, working
for DNA-People’s Legal Services. From 1987 to 1997, he was a staff attorney for the
New Mexico Court of Appeals. In the summer of 1997 he left the Court of Appeals to
work as a career law clerk for United States District Judge Bruce Black in Albuquerque
and Santa Fe. He returned to the Court of Appeals as Chief Staff Attorney in
November 2012.
Albuquerque Journal (Albuquerque, New Mexico) · Sun, Dec 16, 2007 · Page 19
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SCHEDULE A Use separate schedule(s) (check only one)
or each category of the
ITEMIZED RECEIPTS 16 X 17a
Detailed Summary Page 17b 17c 17d 18
19a 19b 20a 20b 20c 21
Any information copied from such Reports and Statements may not be sold or used by any person for the purpose of soliciting contributions
or for commercial purposes, other than using the name and address of any political committee to solicit contributions from such committee.
NAME OF COMMITTEE (In Full)
BILL RICHARDSON FOR PRESIDENT EXPLORATORY COMMITTEE INC
Full Name (Last, First, Middle Initial)

A. C. C. BACON Date of Receipt
Mailing Address M M / D D / Y Y Y Y
715 LOMA VISTA DRIVE 02 01 2007

City State Zip Code
ALBUQUERQUE NM 87106 Amount of Each Receipt this Period
FEC ID number of contributing 2300.00
federal political committee.
Name of Employer Occupation

SUTIN, THAYER AND BROWNE
ATTORNEY
Receipt For: 2008 Election Cycle-to-Date
X Primary General
Other (specify) 2300.00
Transaction ID: 17a-000000193
B. CYNTHIA H. BACON Date of Receipt
1013 EL ALHAMBRA NW 03 09 2007

City State Zip Code
ALBUQUERQUE NM 87107 Amount of Each Receipt this Period

ATKINSON AND THAL PC
PARALEGAL
X Primary General
C. ANNE CARSON BAER Date of Receipt
5700 SOUTH CHERRY CIRCLE 03 06 2007

City State Zip Code
GREENWOOD VILLAGE CO 80121 Amount of Each Receipt this Period

SELF-EMPLOYED
COMMUNITY ACTIVIST
X Primary General
SUBTOTAL of Receipts This Page (optional) ..................................................................

4850.00
TOTAL This Period (last page this line number only) .......................................................
FEC Schedule A (Revised 1/2001)
U.S. Department of Justice
United States Attorney

District of New Mexico
Post Office Box 607 505/346-7274

Albuquerque, New Mexico 87103 505/346-7224
FAX 505/346-7296
August 27, 2009
Paul Kennedy, Esq Luis G. Stel~ner, Esq.

201 12th StNW 40 First Plaza NW, Suite 740
Albuquerque, NM 87102-1815 Albuquerque, NM 87102
Mx. Todd Wertheim, Esq. Peter Schoenburg, Esq.

P.O. Box 2228 500 Fourth St. NW, Suite 400
Santa Fe, NM 87504-2228 Albuquerque, NM 87102·2174
Donald Etra, Esq, Dick Beckler, Esq.

2029 Century Park East, Ste. 1040 1299 Pennsylvania Ave, NW
Los Angeles, CA 90067 Washington, DC 20004
Re: CDRINMFA
Dear Gentlemen:
As you know, the United States' investigation in the above-referenced matter has
revealed that CDR and its officers made substantial contributions to Governor Richardson's
political organizations during the time that the company sought financial work with the NMFA.
The investigation further revealed that ptessure from the governor's office resulted in the
corruption of the procurement process so that CDR would be awarded such work. At this time,
however, the United States will not seek to bring charges against your clients arising out of the
NMFA's award of financial work to CDR.
This letter is limited solely to each party's conduct in NMFA's award of financial work to
CDR in 2004, It is not to be interpreted as an exoneration of any party's conduct in that matter,
nor should it be interpreted to address other conduct that may be under investigation.
Re: CDRINMFA
August27, 2009
Page2
This notification shall not preolude the United States or the grand jury from reinstituting
such an investigation without notification if, in the opinion of the United States or the grand jury,
circumstances warrant such a reinstitution.
~4~
~c;'®(Y~. FOURATT
United States Attorney
GUIDE TO THE EXHIBITS FOR THE AMENDED COMPLAINT
In narrative form, this guide lists some of the key events which have led to the current
controversy. The key events may seem unrelated at first, but all of them are related behind the
scenes. This guide explains how the exhibits support the allegations in the amended complaint.
The exhibits have been condensed for this amended complaint by deleting pages from the
original exhibits. The exhibit numbers are the same. For ease of reference, the PDF page
numbers run consecutively through the entire set of exhibits
C. CHRONOLOGY OF CERTAIN KEY EVENTS
47. Unless otherwise noted, rule citations are to New Mexico Rules Annotated (NMRA), and
statutory citations are to New Mexico Statutes Annotated (NMSA) or the United States Code
(U.S.C.). Paragraph numbers are from the original complaint.
48. Victor Marshall practiced law in state and federal courts continuously from 1975 until
January 13, 2022, when the New Mexico Supreme Court suspended him from practicing law.
49. Victor Marshall was suspended because he discovered serious judicial misconduct and
reported that misconduct, as he was required to do by law, in order to protect his clients and the
integrity of the judicial system.
50. Marshall was sanctioned because he spoke in court and to the press on behalf of his
clients about the judicial misconduct. As a result, the disciplinary authorities retaliated against
him and his clients, in violation of the First Amendment, the Due Process clause in the
Fourteenth Amendment, and the Excessive Fines clause in the Eighth Amendment. On January
13, 2022, the Supreme Court suspended him from the practice of law, after denying him and his
counsel the right to use “after-acquired evidence.” In March 2023 the unconstitutional sanctions
were expanded, “clarified,” and imposed on all attorneys who practice in New Mexico.
51. Marshall reported judicial misconduct in cases that directly or indirectly affect all two
million people who live in New Mexico. The first is the litigation over water rights in the San
Juan River Basin. State ex rel. State Engineer v. United States, No. D-1116-CV-197500184.
The second is the series of cases filed by Frank Foy under the Fraud Against Taxpayers Act to
recover money for taxpayers from the people who ran a pay to play kickback scheme at the State
Investment Council (SIC) and the Educational Retirement Board. State ex rel. Foy v. Vanderbilt
Capital Advisors, LLC, No. D-101-CV-200801895; State ex rel. Foy v. Austin Capital
Management, LTD, No. D-101-CV-200901189; and related cases.
52. These lawsuits all arise from illegal actions taken by Bill Richardson while he was
Governor of New Mexico (from 1/1/2003 through 12/31/2010). The water rights litigation arose
because Richardson signed a water agreement with the Navajo Tribe that violated federal and
state water laws. Richardson did this without authorization from the Legislature. The fraud
litigation arose because Richardson ran a pay to play scheme where Wall Street firms paid
kickbacks to Richardson and his cronies to obtain lucrative investment contracts from the State.
53. [During the years that Richardson negotiated his water agreement and ran his kickback
scheme, one of his principal lawyers was C. Shannon Bacon. Richardson appointed her as a
judge in 2010. She is now the Chief Justice of the New Mexico Supreme Court.]
54. In narrative form, this complaint lists some of the key events which have led to the
current controversy. The key events may seem unrelated at first, but all of them are related
behind the scenes.
55. 2004. Governor Bill Richardson vetoes certain budget line items for the New Mexico
Retiree Health Care Authority (RHCA). A group of retired state government employees hires the
Marshall firm to challenge Governor Richardson’s veto, as co-plaintiffs with the Retiree Health
Care Authority. Board of Directors of the New Mexico Retiree Health Care Authority v.
Jimenez, No. D-202-CV-200405109, Complaint (Aug. 10, 2004).
56. March 9, 2005. A meeting is held at the Marshall law firm’s offices to
discuss the retiree litigation. See Exhibit 7, in particular Exhibit 2 attached thereto. Paul
Bardacke and Shannon Bacon represent Bill Richardson at that meeting, personally and
officially. Mr. Bardacke does most of the speaking for Richardson, but Ms. Bacon actively
participates also.
57. The meeting is also attended by State Treasurer Robert E. Vigil [who was later
imprisoned for extortion].
58. Also in attendance is Bruce Malott, Chair of the Educational Retirement Board. During
the meeting it becomes apparent that Malott is coordinating with Bardacke and Bacon to support
Richardson’s position. [It was later discovered that Malott ran Richardson’s pay to play bribery
scheme at the ERB. Malott also acted as the personal accountant for Bill and Barbara
Richardson. Malott was named in the Foy pay to play litigation in 2008, and ultimately the
resulting public scandal forced Malott to resign from the ERB. See part E below.]
59. At one point State Treasurer Robert Vigil says that Milton Sanchez (the Executive
Director of the Retiree Health Care Association) should be fired because “he stirred up the
legislature.” Marshall replies that petitioning the legislature is constitutionally protected activity.
60. Bardacke and Bacon indicate that Governor Richardson would be willing to restore
funding for the RHCA as part of a settlement. The main sticking point then becomes the status
of Milton Sanchez. The retirees want written protections to protect Milton Sanchez from
retaliation. Bardacke balks at putting anything in writing, but he promises that there would be no
retaliation against Mr. Sanchez. Bardacke says “You have my word, and the Governor’s word,
that Milton Sanchez will not be fired.” Based on those promises, the retirees are able to reach a
settlement with Richardson. See Exhibit 7.
61. March 18, 2005. The retiree health care litigation is settled when Richardson agrees to
restore the budget cuts. Shannon Bacon signs the dismissal on behalf of Governor Richardson.
Exhibit 7, in particular Exhibit 2 attached thereto. [For later events, see part E. KEY EVENTS
IN THE RICHARDSON PAY TO PLAY LITIGATION.]
62. 2005. In 2005 Marshall is contacted by a Senate colleague who represents a Senate
district in San Juan County, New Mexico. The colleague asks the Marshall law firm to represent
local water owners and acequias in litigation over water rights in the San Juan River basin in
Northwest New Mexico.
63. The acequias and local water owners were facing adverse water claims by the Navajo
Nation (also known as the Navajo Tribe), the United States, and the State of New Mexico. These
three governments were claiming huge amounts of water from the San Juan River for the use of
the Navajo Tribe and its members. Governor Richardson had signed a proposed water agreement
to give the Tribe and its members more than 635,000 acre-feet of water per year from the San
Juan River Basin in New Mexico. This was roughly six times the amount of water used by the
entire Albuquerque metro area.
64. The Navajo water claims are directly adverse to the local water owners and acequias,
because
“In the arid parts of the West . . . claims to water for use on federal
reservations inescapably vie with other public and private claims for the
limited quantities to be found in the rivers and streams.” United States v.
New Mexico, 438 U.S. 696, 699 (1978). If there is no surplus of water in the
Colorado River, an increase in federal reserved water rights will require a
“gallon-for-gallon reduction in the amount of water available for water-
needy state and private appropriators.” Id., 438 U.S. at 705.
Arizona v. California, 460 U.S. 605 (1983) (quoting United States v. New Mexico, 438 U.S. 696
(1978)).
65. Local water owners and acequias have water rights that had been adjudicated by the New
Mexico courts in the Echo Ditch Decree of 1948. In this regard the San Juan River and its
tributaries (the Animas River and the La Plata River) are quite unusual, because most of the
rivers and streams in New Mexico have never been adjudicated by the courts. For example,
water rights along the Middle Rio Grande (Albuquerque and Santa Fe) have never been
adjudicated by any court.
66. After some discussions and meetings, the Marshall law firm agrees to represent local
water owners and acequias in the controversy, working through the San Juan Agricultural Water
Users Association.
67. May 31, 2006. San Juan water owners meet with Senator Jeff Bingaman at San Juan
Community College in Farmington to discuss the water controversy. The meeting was attended
by Senator Bingaman; his staffer Mike Connor (who later became head of the Bureau of
Reclamation); Mike Sullivan, Chairman of the San Juan Agricultural Water Users Association;
Jim Rogers, Treasurer; State Senator Ray Kysar; Victor Marshall; and Shirley Meridith, the
Marshall firm’s law librarian.
68. The proposed Richardson Navajo agreement was subject to the condition that it would
not be effective unless and until its legality and fairness was approved by the state District Court
in San Juan County. Marshall informed Senator Bingaman that passage of a federal statute
would not put an end to the controversy, because the agreement would be still challenged in court
by local water owners. When he heard this, Senator Bingaman looked surprised and perturbed.
He turned to Mike Connor and said, “You mean if we pass this thing, it just goes back to court?”
Mike Connor replied “Yep.”
69. [The significance of this meeting did not become apparent until many years later, after
retired Judge Bruce Black was specially assigned to rule on Senator Bingaman’s legislation.]
70. January 2007. KNME-TV broadcasts a 30 minute news documentary about the
proposed Navajo settlement and pipeline, entitled “The Water Haulers.” KNME-TV is a joint
venture of the University of New Mexico and Albuquerque Public Schools. “The Water
Haulers” program appears to be a regular news documentary. At the very end of the broadcast,
after all the credits, it states that the program was funded in part by the Navajo Water Rights
Commission, the Healy Foundation, and the OSE/ISC. To the ordinary viewer, who is not likely
to watch the credits anyway, it appears that this is a typical PBS news program, funded by
various foundations, sponsors, or public entities.
71. “The Water Haulers” does not disclose that KNME agreed to present the content and
story line proposed by the State of New Mexico and the Navajo Nation, in exchange for money.
KNME did not disclose that KNME agreed to present only the viewpoint of the Navajo Nation
and the OSE, in exchange for funding from them. Although KNME presented the program as
television journalism, KNME agreed to abandon the first principle of journalism, which is to get
all sides of the story.
72. “The Water Haulers” is a very effective piece of political propaganda, because it
masquerades as news reporting from a trusted, impartial, and objective source – public television.
“The Water Haulers” is also effective because it has great emotional appeal: any normal person
watching the broadcast would feel sorrow and guilt at the very real plight of the poor Navajos
who appear on the program. To capitalize on these feelings, KNME posted a link on “The Water
Haulers” website with a “List of Congressional Reps,” so that viewers could “Get Involved” with
the pending legislation. KNME has passed it off as a bona fide news broadcast, when in
substance “The Water Haulers” is a “paid infomercial” or “paid political advertisement.”
73. The KNME-TV program violates the integrity guidelines of the Public Broadcasting
System.
74. August 28, 2007. The Marshall firm files a lawsuit against KNME-TV, its owners and
the State Engineer for violations of the Inspection of Public Documents Act. San Juan Agric.
Water Users Ass’n v. KNME-TV, No. D-202-CV-200707606, 2010-NMCA-012, 227 P.3d 612,
rev’d, 2011-NMSC-011, 257 P.3d 884, (later appeal No. A-1-CA-35839 reversing district court,
Memorandum Opinion (Apr. 16, 2019). [Ultimately, on June 8, 2022, after almost 15 years of
arduous litigation, the San Juan Agricultural Water Users Association is awarded $107,060.40 in
legal fees and costs. This was a small victory, but the real victory went to Bill Richardson and
his State Engineer John D’Antonio, because they delayed the production of records until after
Congress passed the legislation that KNME lobbied for.]
75. March 30, 2009. Congress passes the federal legislation containing the Navajo
Settlement, Pub. L. 111-11. Senator Jeff Bingaman is the primary sponsor of Public Law 111-11.
The Navajo settlement is conditioned upon approval by the state district court, and subject to
challenge in that forum, as Senator Bingaman knew from his meeting with local water owners on
May 31, 2006, described above. Public Law 111-11 sets a deadline of December 31, 2013, for
the district court to enter a judgment approving the settlement.
76. September 2, 2009. By Joint Motion, Case No. AB-07-1 (“the Navajo Inter Se”) is
commenced as a separate proceeding (sometimes called a “subfile”) within the general stream
adjudication to adjudicate the water rights of the Navajo Nation relative to other water owners.
In this special proceeding, the plaintiffs were the Navajo Nation, the United States, and the State
of New Mexico through the State Engineer. The defendants were local water users, towns, and
acequias along the San Juan River.
77. November 10, 2009. Judge James J. Wechsler, a judge of the New Mexico Court of
Appeals, is specially assigned to Case No. CV-75-184 and Case No. AB-07-1, to act as the trial
judge in the district court. The selection of Judge Wechsler does not follow the usual practice for
the random assignment of judges in the district courts.
78. Judge Wechsler makes no disclosures about actual or potential conflicts of interest, or any
other grounds for possible recusal.
79. [As set forth below, it was later discovered that Judge Wechsler was hand-picked for this
special assignment by a committee that knew he had worked as a lawyer at DNA, advancing the
interests of the Navajo people. Exhibit 9. The members of the committee were Justice Richard
Bosson, Special Master Stephen Snyder, and Celina Jones, a lawyer at the Administrative Office
of the Courts. Wechsler, Bosson, Snyder, and Jones did not disclose any information germane to
possible disqualification or recusal, because one or more of them realized that disclosure would
prompt disqualification motions by the defendants.]
80. [The Navajo Nation, the United States, and the OSE also knew that Wechsler had worked
as an lawyer at DNA. They knew that Wechsler had acted as an attorney and advocate for
Navajo interests. The attorneys and employees of the three governments kept this information
hidden because they expected that Wechsler would favor the Navajo side of the case, as he did.
Their inside knowledge about Wechsler explains the complacency which they exhibited
throughout the litigation.]
81. March 4, 2010. Judge Wechsler convenes an annual working group on water issues as
required by Rule 1-071.3. In earlier years the sessions convened by Judge Valentine had been
well attended by water judges and practitioners. Under Judge Wechsler attendance dropped off
sharply, because the sessions were mostly consumed by rote presentations from the Office of
State Engineer describing their inability to adjudicate New Mexico’s streams and rivers.
82. At the session, Judge Black is the only judge in attendance, other than Judge Wechsler
himself. It appears that Judge Black attended because Judge Wechsler asked him to.
83. After the meeting broke up, Judge Black and Victor Marshall chatted and exchanged
pleasantries. During this conversation, Judge Black states emphatically that “You’ll never
adjudicate the Middle Rio Grande.” Judge Black is referring to the middle sector of the Rio
Grande River, which includes Santa Fe, Los Alamos, Bernalillo, Rio Rancho, Albuquerque, Los
Lunas, and Belen. Water rights in this area have never been adjudicated by the courts, and Judge
Black is stating his view that it is impossible to adjudicate the water rights belonging to local
users on the middle Rio Grande. [This was a disturbing statement, but its practical significance
did not become apparent until years later.]
84. October 3, 2011. Special Master Snyder conducts a mandatory mass meeting of all
defendants and counsel in the livestock pavilion at the San Juan County Fairgrounds near
Farmington. More than 2,500 people attend the meeting. A photo of the court meeting is
attached as Exhibit 10.
85. October 31, 2011. On behalf of the acequias and local water owners, the Marshall firm
files a “notice of constitutional defect in service list.” Exhibit 11. The acequias have been
contending that the service of process for AB-07-1 does not meet the constitutional standards set
by Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) and Mennonite Bd. of
Missions v. Adams, 462 U.S. 791 (1983).
86. In reaction to the notice filed by Marshall on behalf of his clients, Special Master Stephen
Snyder sends an email to Celina Jones of the Administrative Office of the Courts, who is now
working on AB-07-1. Exhibit 12. Snyder’s email is unintentionally copied to Marshall. When
the defendants assert their constitutional rights to adequate service of process, the Special Master
rejects these rights as nothing more than “More dilatory tactics by Marshall.” Exhibit 12 shows
actual bias, prejudgment, and disregard for constitutional rights.
87. After his email became known to local water owners, Special Master Snyder did the
correct thing: he disqualified himself from the litigation. Exhibit 13. [However Judge Wechsler
and Celina Jones continued on the case, although they should have also disqualified themselves,
for reasons which they kept hidden from the defendants.]
88. When Special Master Snyder disqualified himself, the plans for approving the
Richardson-Navajo deal were thrown off. The plan had been that Snyder would do the work as
Special Master, conduct the hearings, and write a recommended decision which Wechsler could
adopt with little or no changes. This plan allowed Wechsler to continue his full time job at the
Court of Appeals. [Using Snyder as a Special Master also gave Wechsler some degree of
deniability if his ties to the Navajo Tribe became known. If that happened, Wechsler could argue
that the decision was primarily made by Snyder, a supposedly neutral jurist.]
89. February 15, 2013. Judge Wechsler refuses to allow the counterclaims filed by local
water owners to prove their water rights relative to the Navajo water claims, even though these
counterclaims are mandatory and must be asserted in response to the complaint by the three
governments. Rule 1-013.

90. June 1 & 2, 2013. Judge Wechsler hears legal arguments only. No witnesses testify.
91. July 12, 2013. Judge Wechsler informs all parties that no evidentiary hearing is
necessary.
92. August 16, 2013. Judge Wechsler issues an opinion granting summary judgment. He
rules that there are no disputed issues of material fact. Judge Wechsler summarily awards
approximately 635,000 acre-feet per year in perpetuity, to satisfy Winters claims within the San
Juan River Basin within New Mexico. 635,000 acre-feet is roughly 6 times as much water as is
used by the Albuquerque/Bernalillo County metropolitan area, and roughly twice as much as
used by the city of Phoenix.
93. Judge Wechsler opines that a trial is not necessary because the Navajo Nation could have
proved that it was entitled to even more water, if the hypothetical trial had been held. The
opinion does not explain how the non-existent trial would have been conducted, who would have
participated, who would have testified, or what exhibits would have been admitted.
94. Judge Wechsler opines that beneficial use is not a limitation on Native American water
claims under the Winters doctrine. He rejects the precedent in State ex rel. Martinez v. Lewis,
1993-NMCA-063, 861 P.2d 235 (Mescalero) and instead adopts a “homeland theory” of water
rights, a theory which has never been implemented by any court.
95. November 1, 2013. Judge Wechsler issues his Partial Final Judgments and Decrees, with
little time to spare before the statutory deadline of 12/31/13.
96. February 14, 2017. Retired Judge Bruce D. Black is specially appointed to hear the
appeals in the N.M. Court of Appeals. His appointment does not follow the normal random
selection for judges. He served on the New Mexico Court of Appeals from 1991 to 1996,
alongside Judge Wechsler. Judge Black then retired from the state bench when he was chosen by
Senator Bingaman to become a federal district judge. Judge Black served on the federal bench in
New Mexico, from 1996 to 2017, when he retired (rather than taking senior status).
97. February 26, 2018. In early 2018, while the case is pending in the Court of Appeals,
Marshall learns for the first time that Judge Wechsler had worked as a lawyer at DNA Legal
Services, an agency or instrumentality of the Navajo Tribe. This information was not known by
the other attorneys representing opponents to the Navajo Claims. Judge Wechsler did not
disclose this information in 2009, when he agreed to decide the Navajo claims, or at any time
afterwards.
98. In Navajo, DNA stands for Diné be’iiná Náhii³na be Agha’diit’ahii which means
“attorneys who work for the economic revitalization of The People.”
99. Accordingly, the acequias file an “Emergency Motion to Enforce Rule 21-211” as
regards Judge Wechsler. A copy of the motion and brief is attached as Exhibit 14.
100. The motion and brief were extremely respectful toward Judge Wechlser:
This motion is filed reluctantly, but it is required by the Code of Judicial Conduct
and the Rules of Professional Conduct. See State v. Barnett, 1998-NMCA-105,
125 N.M. 739 (lawyer has a duty to raise apparent conflicts).
***
In fairness to Judge Wechsler, it should be emphasized that there is nothing
reprehensible about Mr. Wechsler’s work for the Navajo Nation and its members.
On the contrary, providing legal services to underserved segments of the
population is one of the highest traditions of the bar.
And there can be no doubt that Mr. Wechsler acted as a zealous, effective, loyal,
and dedicated advocate for his clients – just as he was required to do by the Rules
of Professional Conduct for lawyers.
But that is exactly why Judge Wechsler cannot sit on this case. As a lawyer
for the Navajo Nation, he had a duty to act with zeal and undivided loyalty as
a champion for the interests of the Navajo Nation. That is the polar opposite
of the duty of impartiality which is imposed on every judge in every case.
[This central point, that there is a plain conflict of legal duties, has never been refuted by
anyone. It has never even been mentioned.]

101. March 2018. The acequias’ motion causes panic among the government lawyers and
staffers, because they realize that the motion might lead to disqualifying Judge Wechsler and
vacating his judgment. So they begin to fabricate a cover story which is largely false, in order to
frame Marshall and to distract from the truth. See Barnes v. City of New York, No. 21-33 (2d
Cir. May 22, 2023) (due process violated when fabricated proof is used to frame a defendant).
102. March 12, 2018. In response to the acequias’ motion, Stanley Pollack (lead Navajo
counsel) makes several assertions which are false or seriously misleading.
(A) Mr. Pollack asserts that DNA was not an agency or instrumentality of the Navajo
Nation. [This assertion was false. Research by the Marshall law firm later found two official
resolutions of the Navajo Tribal Council asserting control over DNA. Exhibit 15. The Navajo
Tribal Council is the highest governing body of the Navajo Nation.]
(B) Mr. Pollack asserts that DNA could not have been an agency or instrumentality of the
Navajo Nation because it was a non-profit corporation. [This assertion is legally incorrect,
because many government agencies are organized as non-profit corporations.]
(C) Mr. Pollack asserts that DNA lawyers never represented the Navajo Nation. [This
assertion is false. DNA provided legal counsel to the Navajo Nation in support of its water
claims to the San Juan River – the subject matter of the COA case. DNA Legal Memo to Tribal
Council, Exhibit 1, in particular Exhibit 6 attached thereto. DNA lawyers were acting as
counselors to the Navajo Nation, giving the Tribe legal advice about water rights. See Rule 16-
201 (lawyer as counselor). DNA also acted as an advocate for The Navajo Nation in non-
adjudicative proceedings, such as Congressional hearings in Window Rock on January 3, 1972.
Exhibit 16. Lawyers often represent their clients in proceedings like this. See Rule 16-309
(lawyers acting as advocates in non-adjudicative proceedings).

(D) Mr. Pollack asserts that James Wechsler represented parties adverse to Navajo
interests in Morton v. Mancari, 359 F. Supp. 585, 586 (D.N.M. 1973), rev’d, 417 U.S. 535, 540
(1974). [This assertion is false: the case headings in Morton v. Mancari show that James
Wechsler appeared on behalf of Native Americans, including Navajos.]
(E) Mr. Pollack asserts that James Wechsler did not represent the Navajo Nation in
certain important cases. [This assertion is misleading: the Navajo Nation was the real party in
interest and financed these lawsuits through DNA. The Navajo Nation did not join as a named
plaintiff because it would waived sovereign immunity if it had done so.]
103. March 26, 2018. The acequias move the COA for full disclosures by Judge Wechsler
and for discovery into the facts relevant to disqualification. State ex rel. State Engineer v. United
States, No. A-1-CA-33535, Acequias’ Motion for Disclosure and Discovery Concerning
Disqualification (Mar. 26, 2018).
104. March 26, 2018. The acequias file a “Motion for Disclosure of Ex Parte
Communications As Required by Rule 21-209,” including communications between Judge
Wechsler and attorneys for the State Engineer. Rule 21-209(A)(1) requires the judge to promptly
notify all parties and give them an opportunity to respond.
105. April 3, 2018. The COA refuses to require Judge Wechsler to make any disclosures, and
refuses to allow any discovery into the facts relevant to disqualification. Retired Judge Black
joins in an order referring Marshall to the Disciplinary Broad for raising questions about Judge
Wechsler’s disqualification, for asking for discovery into relevant facts, and for asking for
disclosure of ex parte communications. Order Denying Emergency Motion To Enforce Rule 21-
211 and Subsequent Motions Filed by Appellants and Order Imposing Sanctions and Awarding
Attorney’s Fees (Apr. 3, 2018). [The later events in the disciplinary proceedings are described in
Part D below.]
106. The COA relies on fabricated assertions made by Stanley Pollack and other opposing
attorneys, without giving Mr. Marshall and the acequias any opportunity to refute the assertions.
[This is a due process error. See Barnes, supra. In addition, the arguments and representations
of counsel cannot be considered as evidence. V.P. Clarence Co. v. Colgate, 1993-NMSC-022, ¶
2, 853 P.2d 722.]
107. Judge Black makes no disclosures whatsoever about possible grounds for his
disqualification. [Inter alia, Judge Black fails to disclose that he is being paid on the side to
work as a lawyer-investigator for the State of New Mexico, one of the parties to the case.]
108. April 3, 2018. On the same day, without hearing oral argument, Judge Black issues an
opinion for the New Mexico Court of Appeals affirming all of Judge Wechsler’s rulings. 2018-
NMCA-053. Judge Black upholds the summary judgment issued by Judge Wechsler, his former
colleague on the Court of Appeals. Inter alia, Judge Black’s opinion holds that all water rights
in New Mexico are subject to federal preemption; that the beneficial use doctrine does not apply
to tribal rights; and that the Navajo Indian Irrigation Project is not a Bureau of Reclamation
Project. Judge Black also holds that courts can adjudicate rivers without considering global
warming, endangered species, water shortages, or other federal water claims. 2018-NMCA-053,
¶ 40. These are radical and unprecedented rulings.
109. May and June, 2018. Almost all of the parties file petitions for certiorari objecting to
Judge Black’s opinion. The State Engineer files a petition for certiorari challenging Judge
Black’s COA opinion. The ABCWUA and the City of Gallup also file a petition contending that
Judge Black’s opinion is erroneous.
110. August 12, 2018. The New Mexico Supreme Court grants certiorari and consolidates the
petitions into one proceeding. No. S-1-SC-37068, Consolidated with Nos. S-1-SC-37065, -
37070, and -37076.
111. September 2019. Stanley Pollack (lead counsel for the Tribe) produces a DNA legal
memo which he had kept in his files for years. Exhibit 1, Exhibit 6 attached thereto (“the DNA
water litigation memo”). This is a legal memorandum which DNA researched and sent to the
Navajo Tribal Council in February 1971, during the time that Judge Wechsler was working as an
attorney at DNA. DNA gave legal advice and counsel to Navajo tribal officials about the subject
matter of the present case: Navajo claims to the Colorado River system. The DNA memo
disproves most of the assertions which Mr. Pollack made to the COA, including his
representation that there was no attorney-client relationship between DNA and the Navajo
Nation.
112. November 19, 2018 - February 2, 2021. In the Supreme Court, many parties submit
motions and briefs.
113. March 29, 2021. The New Mexico Supreme Court unexpectedly issues an order
quashing certiorari as improvidently granted, without explanation.
114. Justice Shannon Bacon votes to quash certiorari, putting an end to the challenges to Bill
Richardson’s water deal.
115. Justice Bacon makes no disclosures about actual or potential conflicts of interest, or any
other grounds for possible recusal.
116. April, 2021. The New Mexico State Engineer, the Albuquerque Bernalillo County Water
Utility Authority, and the City of Gallup file motions asking the Supreme Court to reconsider its
order quashing certiorari. The State Engineer correctly points out that the COA opinion
contradicts federal law and due process.

The [COA] Opinion instead relies sua sponte on a misplaced application of

federal law to supersede the due process specifically provided by this Court for
statutory stream system adjudications in New Mexico. This reasoning undermines
both the authority of the state courts to adjudicate water rights and the State
Engineer’s authority to administer the waters of the State.
117. December 6, 2021. Justice Bacon votes to deny reconsideration.
D. THE DISCIPLINARY PROCEEDINGS AND THE NEW CENSORSHIP RULES
118. May 7, 2018. Disciplinary Counsel files three charges against Marshall, alleging that he
had
(1) committed defamation of Judge Wechsler in violation of Rule 16-802(A);
(2) made frivolous filings in violation of Rule 16-301;
(3) engaged in conduct that is prejudicial to the administration of justice, in violation of
Rule 16-804(D).
119. Assistant Disciplinary Counsel Jane Gagne recommends that Mr. Marshall receive a
public reprimand.
120. There is no claim that Marshall cheated any of his clients, stole from them, deceived
them, or engaged in any wrongdoing towards his clients. The disciplinary charges are highly
unusual, because there is no claim that disciplinary proceedings are needed to protect clients,
which is the primary purpose of the disciplinary rules. To the contrary, the disciplinary
proceedings ultimately hurt those clients by taking their lawyer away, although the clients want
Marshall to continue.
121. The disciplinary charges are based entirely on the alleged damage to the reputation of
certain judges and the judicial branch, rather than any injury to clients or the public. Under
*Landmark Communications and *Republican Party, alleged damage to judicial reputation is not
sufficient to justify abridgement of speech.

122. During the disciplinary process, the disciplinary authorities deny Mr. Marshall and his
counsel (Jeffrey Baker) an adequate opportunity to disprove the charges against him. The
disciplinary committee allows some discovery, but then cuts it off. The committee denies
discovery as regards DNA and the Navajo Tribe, on the erroneous grounds that the Navajo
Nation and its lawyers are immune from New Mexico’s the Rules Governing Discipline.
123. September 20, 2018. Assistant Disciplinary Counsel Jane Gagne moves the Disciplinary
Committee to bar “after-acquired evidence,” i.e. the evidence which Marshall and his counsel
gathered to defend against the disciplinary charges which she filed as disciplinary counsel.
Disciplinary Counsel’s Trial Brief on After-Acquired Evidence.
124. There is no authority for such a rule, because litigants have a due process right to gather
and introduce evidence. In America, there is an entire independent branch of government – the
judiciary – which devotes itself to gathering “after-acquired evidence.”
125. October 2 & 3, 2018. The committee conducts its evidentiary hearing without ruling on
“after-acquired evidence.”
126. December 14, 2018. After the hearing is concluded, the disciplinary committee bars the
use of “after-acquired evidence” by Marshall and his counsel. FOF 54. The disciplinary
authorities impose this prohibition retroactively, so Marshall and his counsel (Jeffrey Baker) had
no notice that they could not rely on “after-acquired evidence.” They reasonably believed that
the committee would allow “after acquired evidence,” per the rules of civil procedure and
evidence, which govern disciplinary proceedings. Rule 17-301(B). The rules explicitly authorize
parties to collect evidence after the case begins, through discovery or their own investigation.
Rule 17-306(B). And the rules also allow parties to use the after-aquired information as evidence
at the hearing: otherwise it would be pointless to collect the information. Rule 17-302.
127. At the same time, the disciplinary committee allows the prosecution to use “after-
acquired evidence” against the defendant. All of the prosecution’s evidence was gathered after
the fact.
128. May 10, 2019. The Disciplinary Panel conducts a hearing which lasts about two hours.
129. The record shows that the disciplinary authorities are unclear about the concept of
defamation. At the disciplinary panel hearing on May 10, 2019, the panel chair asks a cogent
question which is never answered:
CHAIRMAN KRAMER: I’m sorry. Do you have any idea why we put the word
“defamation” in there [the rule?]
MS. GAGNE: None. There’s no indication at all.
5-10-19 Panel Tr. 62:1-4.
130. May 14, 2019. The disciplinary panel issues its decision affirming all the actions of the
disciplinary committee. The panel affirms the prohibition against the use of “after-acquired
evidence.” Finding 4(A).
131. October 9, 2020. Professor Alan B. Morrison of George Washington University Law
School files a motion and proposed amicus brief in support of Victor Marshall in the New
Mexico Supreme Court. Professor Morrison is an acknowledged expert in constitutional law.
He volunteered to write the amicus.
132. September 29, 2021. The Supreme Court refuses to receive Professor Morrison’s amicus
motion and brief.
133. December 17, 2021. Marshall’s counsel Jeffrey Baker submits several exhibits proving
that Marshall’s assertions were true. Exhibit 1. In America, under the First Amendment, truth is
an absolute defense to a defamation action.
134. January 11, 2022. In order to eliminate the ability to prove the truth as a defense, the
New Mexico Supreme Court prohibits Marshall and his attorney from using “after-acquired
evidence” to defend against the disciplinary charges. Order denying the use of after-acquired
evidence, filed January 11, 2022. Exhibit 2.
135. January 12, 2022. The court holds argument. The court relies upon the false assertions
advanced by Stanley Pollack, even though these assertions are (a) inadmissible, and (b) disproved
by the “after-acquired evidence” submitted by Marshall and his counsel.
136. January 13, 2022. The court suspends Marshall from practicing law indefinitely, for a
minimum of one year, with no expectation of readmission. Order of Suspension.
137. May 25, 2022. During the remote video hearing on May 25, 2022, the NMSC commits
another due process violation. Chief Justice Bacon takes away Marshall’s basic constitutional
protections. Chief Justice Bacon bars Marshall from speaking in his own defense, even to give
legal argument, unless he first surrenders the protections of procedural due process:
Chief Justice Bacon – But you can make the presentation, it just has to be
under oath.
[06:03] Marshall – Will it be subject to cross-examination, rebuttal, or any of
the usual evidentiary safeguards?
[06:12] Bacon – No Sir......
[07:17] Marshall – Justice, let me point out the obvious due process and
confrontation problems involved in this procedure, where you say that it
won’t be subject to the Rules of Civil Procedure, or rebuttal, or, by the way,
witnesses. I
Exhibit 17. A videotape of this entire hearing is attached and incorporated as Exhibit 18.
138. The recording shows that Marshall spoke for a total of 139 seconds (two minutes and 19
seconds), with permission from the court. The video recording shows that he observed proper
decorum: he was respectful and not disruptive. He did not curse the judges. He did not even
raise his voice (despite a poor video connection). When Justice Bacon asked him to conclude, he
continued for a few seconds, just long enough to finish stating his position for the record. At no
time was he given a warning about being held in contempt.
139. After a break, Justice Bacon silences Marshall with a mute button,
140. Justice Bacon’s actions prevented Marshall from even presenting legal argument in his
defense, such as the controlling case law from the Supreme Court of the United States.
Therefore he has no choice but to present the governing law in federal court, through this
complaint.
141. May 26, 2022. Justice Bacon enters an order holding Marshall in contempt, fining him
$2,000, and extending his indefinite suspension from one year to 18 months.
149. March 13, 2023. Chief Justice Bacon issues a decision expanding the prohibition against
“after-acquired evidence” to all attorneys who practice in New Mexico. In re Marshall, 2023-
NMSC-006. This unconstitutional decision now prevents Marshall and all other lawyers from
acquiring and presenting evidence which they gather after the fact. This rule prevents discovery
and other methods of finding evidence, because the evidence cannot be used in the disciplinary
process. This blatantly unconstitutional rule applies to all lawyers, whether they practice as
regular members of New Mexico’s mandatory bar, or pro hac vice.
150. In addition to violating the First Amendment, the prohibition against “after-acquired
evidence” also violates the Due Process clause of the Fourteenth Amendment. This new rule
strips attorneys of their procedural due process right to disprove disciplinary charges by
collecting and presenting evidence after the charges have been filed. This denial of due process
now applies to all attorneys practicing law in New Mexico, whether they are members of the
New Mexico bar or the bar of some other state.
151. March 16, 2023. The NMSC institutionalizes the new contempt sanctions against
Marshall and extends them to all attorneys in all cases. In re Marshall, 2023-NMSC-009.
E. KEY EVENTS IN THE RICHARDSON PAY TO PLAY LITIGATION.
152. The disciplinary proceedings and the new censorship rules are pretextual. They profess to
uphold the law, and the integrity of the judicial branch, and public trust in the judiciary, but in
reality they cover up wrongdoing by judges, retaliate against lawyers, and censor free speech in
court and in public.
153. Chief Justice Bacon wrote her opinions to cover up for Bill Richardson’s wrongdoing, to
cover up for herself as Richardson’s lawyer, to advance Richardson’s initiatives, and to retaliate
against Marshall and his clients because they opposed Bill Richardson. This section explains
describes some of the reasons for Justice Bacon’s conduct. There are many other improper
reasons for her conduct, but they are being hidden by Justice Bacon’s absolute refusal to make
any disclosures.
154. March 9, 2005. Shannon Bacon and Paul Bardacke defend Bill Richardson in the retiree
health care litigation, described above. They coordinate with Bruce Malott, Chair of the ERB.
155. 2008. As a result of the retiree health care litigation, Marshall meets Frank Foy, the
Deputy Chief Investment Officer at the ERB. Frank Foy is concerned about fraud by Richardson
and his cronies against the ERB and the SIC (State Investment Council).
156. July 14, 2008. Frank Foy files a lawsuit under the Fraud Against Taxpayers Act (FATA).
Foy’s lawsuit challenges a pay to play ring being run by Governor Bill Richardson and his
cronies. State ex rel. Foy v. Vanderbilt Capital Advisors, LLC, No. D-101-CV-200801895. The
lawsuit is filed by the Marshall law firm. Pursuant to FATA, the Foy complaint is kept under
seal.
157. In the original 2008 Vanderbilt complaint, Bill Richardson was included as Defendant
John Doe #1, although he was not identified by name. John Doe #2 was the designation for
Richardson’s chief of staff, David Contarino. Mr. Contarino was later identified by name as a
defendant.
158. January 2009. By court order, the pay to play lawsuit is unsealed in mid-January 2009.
As soon as they learn about Foy’s lawsuit, Shannon Bacon and Paul Bardacke begin working to
protect Richardson, because that is part of their job as his attorneys.
159. The Foy lawsuit sparked public outrage that put an end to Bill Richardson’s political
career.
160. The pay to play litigation also put an end to Shannon Bacon’s hopes of advancement
along with Bill Richardson.
161. The Richardson ring siphoned money from the State Investment Council (SIC) and the
Educational Retirement Board (ERB), where Frank Foy served as Chief Investment Officer. The
kickback practices were so extensive that they yielded more than $18 million in payments to one
person (Marc Correra) for no-show work.
162. April 2009. Foy and the Marshall firm file a second FATA lawsuit that expands and
follows up on Vanderbilt. State ex rel. Foy v. Austin Capital Management, LTD, No. D-101-CV-
200901189.
163. In Vanderbilt/Austin, Frank Foy and Victor Marshall found a surreptitious 2006 audio
recording where participants in the Richardson ring discuss how the pay to play conspiracy works
in New Mexico. Saul Meyer of Aldus tells his colleagues,
MEYER: I’m pushing to have him [Frank Foy] fired before the October meeting
[of the ERB].
To get rid of Foy, the conspirators are working through Bruce Malott, the Chairman of the ERB.
Bruce Malott was also Bill Richardson’s personal accountant.
164. On the audio recording Meyer explains how the conspiracy works at the SIC. Marc and
Anthony Correra used their connections to Richardson to demand finder’s fees from Wall Street
firms. (The Correras received at least $18 million in kickbacks on New Mexico investments.)
Meyer complains that it is becoming harder for the conspirators to juggle all the kickback deals
and place them without arousing suspicions:
MEYER: . . . Julio feeds Anthony and Marc good deals. Okay? So that we don’t
have heartburn and don’t get fired, so that we can then go and get other mandates.
And in return, in this ecosystem, Anthony and Marc give Julio the ability to do a
couple of deals a year . . . .
UNIDENTIFIED: Whew.
MEYER: That’s it . . . . That’s the whole way it runs. Okay? . . . To not think that
Anthony and Marc don’t have a stranglehold over this thing is crazy. Because the
Governor runs this sh*t and they run the Governor.
ELLMAN: How does Gary [Bland] fit into this mess?
O’REILLY: He listens to Marc, . . . or Anthony. . . . He does what Anthony says.
ELLMAN: So when they want to put 25 million dollars or however much money
in Carlyle, Mexico, who precipitates that decision?
MEYER: Anthony. . . . Sometimes the Governor can get cute and go around him
to a trustee. . . . Now none of this leaves this room. . . . The Governor has no
involvement officially, or unofficially. Okay?
Aldus audio recordings. Exhibit 19.
165. The evidence shows that Governor Richardson was involved in a criminal conspiracy
during the time he was represented by Shannon Bacon. The extent of Shannon Bacon’s
knowledge or participation, if any, is not known, because she has made no disclosures.
166. June 25, 2015. New Mexico Supreme Court rules in State ex rel. Austin Capital
Management, LTD, 2015-NMSC-025, 355 P.3d 1, that retroactive application of the Fraud
Against Taxpayers Act does not violate the Ex Post Facto Clauses and that Frank Foy is a proper
plaintiff in both the Vanderbilt and Austin Capital actions.

167. August 28, 2015. District Judge Louis McDonald is specially designated to handle the
Foy cases, rather than the normal procedure of assigning the case through random selection.
Attorney General Hector Balderas moves to dismiss the case. Balderas should have recused
himself, because he was one of Bill Richardson’s political proteges. Richardson and the Correras
financed Balderas’ political career with pay to play money.
168. September 5, 2017. Judge McDonald dismisses the Foy case without allowinG any
discovery. Foy appeals.
169. February 4, 2019. Governor Michelle Lujan Grisham appoints Shannon Bacon to the
Supreme Court.
170. September 24, 2019. Retired Judge Michael Bustamante is specially appointed to hear
the Foy appeal. His appointment does not follow the system for random appointment of judges.
He makes no disclosures about actual or potential grounds for disqualification.
171. May 8, 2020. Foy and the Marshall firm file a FATA lawsuit naming Bill Richardson as
the ringleader of the pay to play scheme that cost the state hundreds of millions of dollars. State
ex rel. Foy and Casey v. William Blaine Richardson III et al., No. D-202-CV-202003004.
172. June 9, 2020. Retired Judge Bustamante writes an opinion upholding the dismissal of
the Vanderbilt/Austin case. 2022-NMCA-026, 511 P.3d 329. Shortly thereafter Foy files for
certiorari.
173. September 21, 2020. Marshall writes letter to the Clerk of the Supreme Court pointing
out reasons that Justice Bacon should recuse herself from the Vanderbilt appeal. Exhibit 7
attachment.
174. October 9, 2020. Justice Bacon votes to deny certiorari in the Vanderbilt case.
175. October 26, 2020. Having received no response to his September 21 letter, Marshall
files a Motion and Brief for Recusal, Disqualification and Rehearing of Justice Bacon. Exhibit 7.
176. Upon information and belief, Justice Bacon ignored the letter to the clerk and the
disqualification motion because she was running as the Democratic candidate for election to the
Supreme Court in November 2020. As a judge she was required to act immediately to disqualify
herself, but as a politician Shannon Bacon wanted to avoid any public scrutiny into her
misconduct on the bench and her close ties to Bill Richardson.
177. November 3, 2020. Shannon Bacon defeats Republican Ned Fuller for election to the
New Mexico Supreme Court by a vote of 55% to 45%. Any adverse publicity would have
shifted a significant number of voters against her, although it is impossible to tell whether it
would have caused her to lose her seat on the Supreme Court.
178. February 22, 2022. Months later, Justice Bacon belatedly recuses herself from the
Vanderbilt case, without explanation. Her late recusal is a tacit admission that she had
disqualifying conflicts of interest. However, her tardy recusal is meaningless because she had
already acted to terminate the Vanderbilt litigation.
179. February 25, 2022. Retired Justice Judith Nakamura is specially selected for the panel
for Vanderbilt. There are at least two constitutional problems with this appointment. First, the
appointment of retired Justice Nakamura was contrary to the New Mexico Constitution, just like
the appointments of retired Judge Black and retired Judge Bustamante. See N.M. Const. art. VI,
§ 15(C) discussed above. Second, Justice Nakamura had already been influenced by Justice
Bacon. Since she had already denied certiorari once, she was not likely to change the conclusion
she had already reached.
180. April 15, 2022. Supreme Court files an Order disposing of various motions. The Order
refers to unspecified “administrative error” in handling the motions, with no explanation.

Attorney Victor Marshall and The New Mexico Supreme Court (NMSC)

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Case 1:23-cv-00494-G8W-JFR Document 8 Filed 06/27/23 Page 1 of 38

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

C. SHANNON BACON, ChiefJustice

FIRST AMENDED COMPLAINT

Victor R. Marshall, pro se

A. INTRODUCTION AND SUMMARY.....1

B. PARTIES, JURISDICTION, AND VENUE.....9

C. AS A MATTER OF LAW, THE NEW CENSORSHIP RULES INFRINGE

D. THE CONTEMPT RULINGS VIOLATE DUE PROCESS, THE FIRST

E. THE NEW RULES AND SANCTIONS ARE WRITTEN TO COVER UP

F. SEVERAL JUDGES HAVE VIOLATED THE LAWS ON JUCICIAL

H. PRAYER FOR RELIEF.....34

A. INTRODUCTION AND SUMMARY

James Wechsler, Bruce Black, and Michael Bustamante.

court. Rule 17-201 (disciplinary rules govern conduct in all courts).

evidence” to defend themselves.

vanished without a trace, as if these governing authorities no longer exist.

UPDATE: ON JUNE 27, 2023, THE SUPREME COURT ISSUED COUNTERMAN V.

First Amendment still demands “a subjective mental-state requirement” to protect against a

statement was false, or “reckless disregard”);

an attorney accused of impugning the integrity of the judge);

maintain the appearance of judicial impartiality is not a compelling state interest);

repressing free speech);

monitor and disclose conflicts is a due process violation);

*Caperton v. A. T. Massey Coal Co., 556 U.S. 868 (2009); and

*Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).

Process Clause of the Fourteenth Amendment in many ways:

to prove the truth of their statements;

proceedings, which are quasi-criminal in nature;

the Rules of Evidence, and the right of confrontation;

pressuring them to express “remorse.”

citizens who come to court seeking justice.

disclosures whatsoever about actual or potential conflicts of interest.

12. Misconduct by Chief Justice Bacon. As a lawyer, Shannon Bacon personally

her from taking any action adverse to her former client.

get rid of challenges to Richardson’s water deal.

pay Judge Wechsler’s son under a new or extended contract.

he awarded them water, without disclosing their attorney-client relationship.

Colorado River Basin water . . . should be named as defendants.”

not the appellate courts. N.M. Const. art. VI, § 15(C).

simultaneously working as a lawyer-investigator for the State of New Mexico. See EX 1,

Professional Services Agreements. It is absolutely unacceptable, and unconstitutional, for a

judge. EX 3 – payments of $71,843 in August 2022, towards a total authorization of $108,000.

These payments are in addition to his judicial retirement benefits. EX 4.

that their cases, clients, and compensation are confidential.

B. PARTIES, JURISDICTION, AND VENUE

Amendment for merit selection of judges, and other judicial reforms.

Jane Gagne is Assistant Disciplinary Counsel at the Disciplinary Board.

New Mexico Interstate Stream Commission (ISC).

33. Venue is proper in this district under 28 U.S.C. § 1391(b)(2).

parte Young. Gill v. PERB, 2004-NMSC-016, ¶¶ 16, 35.

*Nebraska Press Ass’n v. Stuart, 423 U.S. 1327, 1329 (1975).

C. AS A MATTER OF LAW, THE NEW CENSORSHIP RULES INFRINGE FREE SPEECH

RULE 16-802(A) DEFAMATION

Amendment and the truth-seeking function of the judiciary.

imposed for communicating with the news media. 2023-NMSC-006, ¶ 3 n.1.

F.3d 729, 742 (6th Cir. 1999).

prohibit “a substantial amount of protected speech” relative to their legitimate applications.

Rule 16-301 FRIVOLOUS PLEADINGS

51. Part C of 2023-NMSC-006, ¶ 34 ties Rule 16-301 to Rule 16-802(A) on defamation, so

not yet known. See Official comment 2 to Rule 16-301:

term will be used to chill and censor unpopular speech.

intelligence a reasonable opportunity to know what is prohibited, so that he may