A state District judge in Las Cruces will hear arguments today on whether the federal government has any rights to store and deliver water from Elephant Butte to Southern New Mexico and Texas farmers.

Either way, Judge Gerald A. Valentine's decision likely will be appealed, given the critical role Elephant Butte plays in New Mexico water policy and politics.

A group of Mesilla Valley farmers has joined with the great-grandson of the man who originally began building a dam near Elephant Butte to argue that the federal government didn't follow state water law and doesn't have legitimate water rights for Elephant Butte Reservoir and the Rio Grande Project built in the early 1900s.

The Rio Grande Project, which includes Elephant Butte, delivers irrigation water to thousands of farmers in the Mesilla Valley and Texas. The project and an associated Rio Grande compact determine how New Mexico manages its share of the Rio Grande, which impacts people up and down the river.

Rebecca Miller, a member of the new Mesilla Valley Council of Community Ditches and a pecan farmer, said if the group loses in court, it will file a class-action lawsuit.

"What you have now is what looks like a concerted effort by the U.S. government, the state and Texas not to recognize senior water rights because of their value," Miller said. "We joined the (Scott) Boyd action because we want to know, did the federal government follow the (state's) priority doctrine when it established the Rio Grande Project?

She said the issue affects water rights both up- and downstream from the dam.

New Mexico's constitution protects senior water rights as paramount to all others. The first people who put water to beneficial use, such as farming, have senior rights to water under the state's priority doctrine — often called "first in time, first in right."

But few of the senior water rights in the state have been adjudicated. The state engineer is in the process of adjudicating water rights in the lower Rio Grande, which encompasses the Mesilla Valley. Valentine is handling the case.

Senior water rights in the middle Rio Grande and portions of the upper Rio Grande also remain undetermined.

Scott Boyd, a Phoenix resident, is the great-grandson of Dr. Nathan E. Boyd, a physician and engineer who was hired in the late 1800s by Mesilla Valley farmers to design a dam and water-delivery system. Scott Boyd has long claimed that his ancestor had legitimate claims to Elephant Butte, rights that were taken away when the federal Bureau of Reclamation formed in 1902 and began work on the Rio Grande Project. Nathan Boyd fought all the way to the Supreme Court, and died broke fighting and losing to the government, according to his great-grandson.

Scott Boyd has long believed territorial-day dirty politics and the fight for control of the West's resources cost both his great-grandfather and New Mexico farmers their own state-guaranteed rights. Water attorneys with the state say the Boyds don't have a valid claim to Elephant Butte water rights and the Rio Grande Project does.

But more than one farmer in the Mesilla Valley, and at least one water broker, have become convinced by Boyd's arguments. A few have joined his fight in court.

"The state has failed in its responsibility to protect our water rights," Miller said. "We're in this with Boyd because we definitely need our senior rights adjudicated. By doing that, we believe we can reset precedence and begin bringing all water rights back under the priority doctrine."

Bill Turner, an Albuquerque water broker and principal of Lion's Gate Water, called the Boyd motion "the most important and fundamental question" of the Lower Rio Grande adjudication in a statement filed with the District Court. "What water rights did the United States legally appropriate for its Rio Grande Project?"

"For more than 100 years there has been no determination of this issue and parties have piled contract upon contract upon a premise that ignores the very bedrock requirements of appropriation under our New Mexico water law," the filing says.

Tony Pernelli, whose family owns historic farmland in the Mesilla Valley, thinks Boyd's arguments have merit. "I believe there's been a quiet grab of water rights going on for a very long time," he said. "I believe there are many people in that valley that are going to get ripped off (in the adjudication)."

State, federal, Las Cruces and El Paso attorneys have filed briefs asking the court to set aside Boyd's motion until the adjudication process is further along.

Meanwhile, the state is negotiating settlements with pecan growers and members of the Elephant Butte Irrigation District. Miller claims those agreements mix senior and junior water rights, something that was never supposed to happen. The fact that senior water rights weren't adjudicated along the Rio Grande before compacts and other agreements were made has created the "morass of judicial and legal issues the state is dealing with now," Miller said. "We do think this is a state's rights issue and a constitutional issue."

Contact Staci Matlock at 986-3055 or smatlock@sfnewmexican.com.