Helping the Country’s Neediest : Roaming the Arid Lands of New Mexico, a Young Lawyer Helps Bring Water to Quench the Thirst of Deep Poverty

The stacks of maps and aerial photographs on the table trace the course of the Rio de las Gallinas and its acequias--the winding irrigation ditches that divert water from the river and carry it to the fields and pastures that line its banks.

David Benavides picks up one of the glossy black-and-white enlargements and peers at it, turning it first one way and then another. He’s having trouble reading the landscape as it appears from 10,000 feet.

“I can’t tell anything from those photos,” he mutters. “I can’t even tell where I am.”

But help is at hand. Here, in temporary quarters of the state engineer’s office, two friendly men readily answer Benavides’ questions and assist in interpreting the aerial photo.

Despite their hospitality, Benavides is circumspect. A public interest lawyer fighting to preserve the precious water rights of thousands of rural farmers in mountainous northern New Mexico, Benavides knows he is among adversaries.

The state engineer’s office, after all, has for a quarter century sought to formally quantify the water rights along streams and rivers throughout the arid region. This process would enable the state to find underused water resources and to settle disputes among neighboring property owners. But it also threatens to strip many impoverished rural residents of their livelihoods.

“If your water rights are taken away, you just have a bare plot of land with no means of making it productive,” Benavides says. “We’re working in some of the poorest counties in the country, and even a meager amount of food off the land is a help.”

As the only full-time water rights lawyer at Northern New Mexico Legal Services, Benavides, 32, is equal parts legal strategist, gadfly, community activist, historian and aerial photo interpreter.

His Hispanic heritage and conversational Spanish have also helped gain the trust of the mostly Hispanic villagers he represents, people who are often deeply suspicious of an Anglo-American legal system that has seldom served them well.

And, in an era of shrinking resources in public interest law work, Benavides has demonstrated a knack for attracting big-time grant money to fund his work.

While still a third-year student at the University of New Mexico law school, Benavides was one of only 25 graduating law students in the United States to win the prestigious Skadden Fellowship. When Skadden funding ends in August, he and an assistant will work under a two-year grant from the Ford Foundation.

Given the rural low-income character of many of the communities it serves, it is not surprising that water rights protection is a priority for Northern New Mexico Legal Services, a Santa Fe-based organization funded by the federal government’s Legal Services Corp. The organization’s 12 lawyers serve low-income people in a 47,000-square-mile territory, ranging from Gallup, near the Arizona border, to Clayton in northeastern New Mexico.

Headquartered in Santa Fe, Benavides spends much of his time on the road, crisscrossing northern New Mexico to meet with leaders of local acequia associations. These democratically run groups, which predate New Mexico’s entry into the union by a few hundred years, maintain the ditches and make sure the water running through them is equitably distributed.

Still, there is confusion among some Hispanic water users about the state’s authority to eliminate or diminish their rights, says Michael Coca, president of the Rio de las Gallinas Acequia Assn., an umbrella group of village acequia organizations.

“Under Spanish and Mexican law, you couldn’t separate the water from the land, so after 150 years, people still find it difficult to believe their water rights can be taken away from them,” he says.

Since last fall, Benavides has been spending much of his time handling a water rights adjudication along the 30-mile Rio de las Gallinas, which rises along the eastern slopes of the Sangre de Cristo Mountains and passes through Las Vegas before emptying into the Pecos River.

An adjudication is a special lawsuit in which the state engineer tries to define the water rights of users along a waterway. The idea is to identify any unused water and to establish which users have priority in years when water supplies are limited. Such lawsuits might involve thousands of property owners and drag on for decades.

The state starts the adjudication process by sending an “offer of judgment” to each property owner along an acequia, describing in technical terms what portion of each parcel the state believes may be irrigated, as well as how much water it should receive. By signing the offer, an owner signifies an agreement.

Sometimes an offer seeks to diminish or destroy a water right. This can happen if the right has been abandoned or forfeited because the landowner failed to use the irrigation water for a certain period of time.

The problem, according to Benavides, is that the state’s offers of judgment can sometimes be wrong. For example, the state engineer’s office might conclude that water rights along an acequia have been forfeited for disuse, unaware that storm damage or some other calamity has prevented farmers from using the ditch. At the same time, rural property owners who cannot afford to consult a lawyer might not realize that they can contest the state’s finding.

Benavides teaches acequia associations how to marshal enough evidence to convince the state engineer’s staff that their findings might be in error. This might consist of combing the state archives for information on when a particular ditch system was dug or how a certain farmer used his water.

This approach has paid off. In negotiations with lawyers and technical specialists from the state engineer’s office this spring, Benavides and a group of clients provided the other side with enough new information to persuade them to change their minds.

Benavides is well-suited to the job because of his energy and enthusiasm, says Lorenzo Campbell, director of Northern New Mexico Legal Services.

“I think he’s developing into a really fine lawyer,” Campbell says. “I’m really pleased with the way that he gets along with the folks we try to help and the way he deals with the institutions we have to deal with.”

Benavides gets similarly high marks from his opponents, including Steve Farris, an attorney for the state engineers office. “I think it helps,” he says of Benavides’ water rights work. “He’s always been real cooperative with us.”

Farris thinks it works to the state’s benefit to have rural water users represented by legal counsel. Benavides’ work also makes the state engineers’ office more accurate, he says.

“They oftentimes can point out things that we miss,” Farris says. “More often than not, we agree with them.”

David Benavides was raised in Wisconsin, the grandson of a Mexican migrant farm worker. His father, a bilingual education teacher, moved to Albuquerque after his divorce, prompting Benavides to move to New Mexico to attend college at UNM in 1978.

After earning an undergraduate degree in biology and political science, Benavides spent four years as director of the local Public Interest Research Group, a Ralph Nader-inspired citizens’ advocacy organization.

He attended law school in hopes of practicing public interest law, a field not noted for its lavish salaries or career advancement possibilities. The Skadden Fellowship, he says, made his dream a reality. (The award, funded by the New York-based law firm of Skadden, Arps, Slate, Meagher & Flom, provides new lawyers in public interest jobs a $32,500 annual salary, plus benefits. The $160,000 Ford Foundation grant will pay for his salary and expenses, as well those of an assistant versed in water rights issues.)

Shaggy haired, bearded and bespectacled, Benavides ignores the “L.A. Law” dress code. His work clothes usually consist of jeans, a buttoned-down shirt and tennis shoes. Although he might not be on the fast track to make partner at a Wall Street firm, he is happy with his career.

“At this stage of my life, this is a passion,” he says. “This is what I want to do. I would be unhappy doing something else.”

He and his longtime girlfriend, Maureen Hickey, recently had their first child, a son named Edward Lee, which has made a happy man even happier. “We’re at this rather fortunate phase of our lives,” he says.

The new arrival has brought Benavides some second thoughts about the time he spends on the road, however.

On this overnight trip to Las Vegas, Benavides drives a few miles up the Rio de las Gallinas to the village of Los Vigiles, where he meets with residents Lorenzo Martinez and Carla Gomez-Victor.

Benavides wants to inspect a narrow acequia that was not visible on the state engineer’s aerial photos he had inspected earlier. The state engineer’s office has never indicated that it knows of the acequia’s existence, and Benavides hopes to persuade it to accept his definition of the villagers’ water rights in his next negotiating session.

As rain clouds descend over Gallinas Canyon, Benavides heads 10 miles farther upstream to the mountain community of El Porvenir, where he meets with acequia association head Nancy Kanode. She updates Benavides on the status of a dispute with a neighbor who is diverting water from El Porvenir Creek, a tributary of the Rio de las Gallinas, but refusing to let any pass down the acequia to other users.

“We can’t wait to irrigate,” says Nancy, who moved to the area with her husband, Brad, from Albuquerque five years ago. Benavides sits on their living room couch cradling a four-week-old kitten as they trade information, but soon it’s time to leave.

“I’m always amazed at this guy,” Nancy says of Benavides’ peripatetic ways. “I’m always telling him, ‘Get a life.’ ”

Outside, the rain has stopped and Benavides is ready for the ride back down Gallinas Canyon to Las Vegas. Although it’s already 5 p.m., he figures on spending several more hours poring over paperwork in the office.

Why, he is asked, does he work so hard?

“Justice doesn’t advance accidentally,” he says simply. “People have to do it.”