La Jicarita News - Community Advocacy for Northern New Mexico

Several recent cases have raised the issue of whether acequia parciantes have the right to maintain and repair their acequias and diversions on public land without being permitted by public lands managers. While legal arguments are being made which could be precedent setting, confirming pre-existing rights, the parciantes and acequia association who are fighting the Forest Service are suffering financial and emotional hardship.

For over a year the parciantes of the Nacimiento Community Ditch Association (NCDA), near Cuba, have been arguing with Santa Fe National Forest over access rights to their acequia and diversion dam near San Gregorio Reservoir in the San Pedro Parks Wilderness Area. When the association approached the Forest Service about wanting to do maintenance work on its acequia, which entailed improving the existing log and sandbag structure on Clear Creek with a rock and mortar and/or log headgate diversion, the Forest Service told NCDA that it needed a special use permit for its entire acequia system, not just the proposed work on the diversion. The association, represented by Community and Indian Legal Services lawyers David Benavides and Margret Carde, claims that rights-of-way for water conveyance, established prior to 1891, come under an 1866 Congressional Act that grants easement without the necessity of a permit or other authorization, and that wilderness restrictions are subject to existing rights.

The Forest Service, on the other hand, claims that the 1976 Federal Lands Policy Act (FLPMA) "includes the right to reasonably regulate the exercise of vested water rights and accompanying rights of way obtained under the 1866 Act where such rights and rights of way lie within national forest." What this legalese means is that even though parciantes have established easements and acequias, the Forest Service claims it has the authority to regulate them.

The Forest Service released a scoping letter as part of a NEPA process in November of 2000 soliciting public input regarding the permitting of this work. In response, attorneys Benavides and Carde objected to the scoping letter on three grounds. The first problem evident in the scoping letter is that the Forest Service continues to assert that its role is to 'authorize' NCDA activities. The concept of authorization implies that NCDA does not already have the right to use and maintain its easement unless and until the Forest Service grants such a right. The second misconception follows from the first, that a NEPA process is necessary for this work. NEPA is only supposed to be invoked when a federal action is proposed. The third "disappointing feature" of the scoping letter is the unilateral way in which the Forest Service is attempting to impose specific limits on NCDA's maintenance and improvement activities without consideration for NCDA's right not to have its easement interest reduced or diminished.

Over the course of the next few months the association and its lawyers met with forest representatives to discuss an equitable balance between NCDA's valid and historic rights and the need for management of public lands. However, the Forest Service, in a May 30th letter to Community and Indian Legal Services, remained intransigent in its insistence that it has the authority to regulate these uses. This time its argument was that "entirely apart from FLPMA" the Secretary of Agriculture retains the right to "reasonably regulate the exercise of vested water rights and accompanying rights-of-way obtained under the 1866 Act where such rights and rights-of-way lie within a National Forest." But what constitutes "reasonable" is under question, be it under FLPMA or the Secretary of Agriculture. A Colorado water lawyer, Peter Fleming, has written an article in Natural Resources Notes that the Forest Service Manual, an internal agency guidebook, states that pre-FLPMA rights of way can be regulated only to the extent such regulation does not reduce the rights conferred by the original right of way grant. Therefore, "no federal authorization is necessary to maintain or make minor changes to the water facility in order to maintain the capacity of the facility as it existed prior to the adoption of FLPMA."

According to attorney Benavides, while the NCDA will continue to defend its pre-existing rights under the 1866 Act, it will also invoke rights under the Treaty of Guadalupe Hidalgo, which supercedes federal law. Moreover, the 1972 Region Three Policy directs the Forest Service to acknowledge and protect the culture and traditions of former land grant communities. Benavides has also provided the Forest Service with a copy of an agreement between the Bitterroot National Forest in Montana and the Big Creek Lakes Reservoir Association that acknowledges the association's fully vested right of way to their dam without need of a special-use permit from the Forest Service. In a letter to the Region Three Forest Service on May 25, Benavides and Carde state that this agreement "still accommodates the Forest Service right to reasonably regulate wilderness activities" by discussing limitations on the activities necessary to maintain the association's water system.

Unfortunately, another case that raised the issue of pre-existing acequia rights recently resulted in a decision against a parciante because he couldn't afford the time or money necessary to litigate his case. Virgil Trujillo is a parciante who owns a water right on the Lopez Ditch in the old community of Vallecitos, above Abiquiu, in the Santa Fe National Forest. In the early 1970s the Forest Service bulldozed the main ditch, which lies on forest land, when they were chaining to create pasture land. Trujillo's uncle, who owned land fed by the ditch, asked that the Forest Service restore the ditch, but had to eventually go to the Forest Supervisor in order to get restitution. The Forest Service paid for his uncle to restore the ditch but also installed a water line from Vallecitos Creek three miles to an allotment pasture, without establishing a water right, and in the process destroyed the diversion dam and rendered a nearby spring useless.

In 1994 Virgil Trujillo bought this land from his uncle's family. In the spring of 2000 he took a bulldozer across Forest land to his property, Rancho Alegre, to build earthen catchment basins. He asked permission of the Forest Service to clean the catchment basins on the Oso and Vallecito Allotments where he is also a parciante, but the agency denied him permission.

Trujillo went ahead with the maintenance work on his basins and the diversion dam, which lies on Forest Service property. Several days after Trujillo began the work, John Miera, Española District Ranger, and law enforcement personnel issued Trujillo a citation and ordered him to stop work immediately. Miera claimed that Trujillo had illegally taken heavy equipment across Forest Service roads and pipeline easement to work on his dam, which could impact archeological sites and a wetland. Trujillo countered that the Forest Service had already bulldozed the original diversion dam and the new easement along the pipeline, but he agreed to stop work.

Trujillo, who is ranch manager at Ghost Ranch, a member of the board of directors of the Quivira Coalition, and a highly-respected range land conservationist, believes that as a land grant heir and parciante, he, like the members of the NCDA, holds pre-existing access rights, which are not subject to regulation by the Forest Service, to maintain and use his ditch. Relying on this principle, he plead not-guilty in federal court. After the judge listened to his explanation, he ordered Trujillo and the Forest Service to work out a settlement within 30 days. When Trujillo, Miera, and range staff biologist Donald Serano met out in the field at the ditch, Miera insisted that Trujillo needed a special use permit to use the ditch. Trujillo said he knew nothing about a special use permit and told Miera that because the ditch pre-dated Forest Service tenure no permit was necessary. According to Trujillo Miera then told him, "I'll tell you if you can put water in the ditch." Trujillo responded, "You better cite me right now because I'm putting water in this ditch this afternoon and you better be prepared to cite everyone in northern New Mexico if you think you have the authority to stop people from exercising their water rights."

After a second meeting Trujillo felt it was obvious that the Forest Service wasn't interested in an equitable settlement and was intent upon prevailing. However, Trujillo, whose career has been based on finding innovative solutions to land management problems, felt that an adversarial relationship with the Forest Service was counter productive and at the next court hearing offered to do the restoration work, under the direction of the Forest Service, if the fine were dropped. The judge approved this civil settlement, but much to Trujillo's surprise, the Forest Service then raised the issue of criminal charges and insisted that he pay $1,400 in damages and a $300 fine. Trujillo asked to meet with the Forest Service to see if they could again negotiate a settlement, but according to Trujillo, the Forest Service and its attorney threatened to seek $7,000 in damages if the case went to trial. Back in front of the judge, Trujillo said, "I don't want to plead guilty but I can't afford not to." Although the judge told him he wouldn't let him plead guilty if he didn't believe that he was guilty, Trujillo said he "couldn't afford the battle or the trips to Albuquerque." The judge accepted his plea and imposed a $300 fine, but it was agreed that Trujillo could do $1,400 worth of restitution in labor or advice. As a final insult, the Forest Service wanted him to be paid $50 a day for his work and to be placed on probation, but Trujillo protested and the judge dismissed these requests.

Trujillo told La Jicarita News that this incident is "a black cloud that will always hang over me. But I hope the other parciantes who are fighting this same battle will be able to get the Forest Service to recognize that it doesn't have the authority to require a special use permit or regulate our pre-exiting water rights."

In addition to the parciantes mentioned in this article, La Jicarita News has learned that the Forest Service has sent letters to other parciantes informing them that they need special use permits for their acequias which originate and/or cross Forest Service land. Attorneys for Community and Indian Legal Services urge any parciante whose acequia pre-dates 1891 and has not been significantly modified since then to not apply for a special use permit. If the Forest Service persists, parciantes should seek legal advice. Parciantes can contact David Benavides of Legal Services at 1-800-373-9881.

ANNOUNCEMENTS

• The hearing to determine the amount of water which Taos Valley mutual domestics can consume is scheduled for August 13 in Taos (La Jicarita will publish the location and time in the August issue). Lawyers for the Taos valley mutual domestics claim the Office of the State Engineer (SEO) has been capricious and arbitrary in determining the amount of water, which varies throughout the state from 150 gallons per person per day to 15 gallons per day. Lawyers for the SEO are trying to deny access to some of the files which demonstrate the process by which they have quantified these rights in the past.

• Indivisible: Stories of American Community is a photography and oral history documentary project about the character and power of 12 diverse American communities and the work of their citizens. A project of the Center for Documentary Studies at Duke University in partnership with the Center for Creative Photography at the University of Arizona, Indivisible features Alaskan fishing communities; Diné bi' íína, Inc. (Navajo Lifeways); midwifery practice and doula service, Stony Brook, New York; Yaak Valley forest Community in Montana, and others. This documentary includes nationally touring museum and postcard exhibitions, a website (www.indivisible.org), a book, archives, an Educator's Guide, and a documentary how-to booklet. Indivisible will be on display at the Center for Creative Photography from July 14 through September 30.

Water Sharing

In a recent article in the New Mexico Historical Review Malcolm Ebright discusses the history of water sharing during times of shortage and drought between the Spanish settlement of New Mexico under Oñate in 1598 and the occupation by the Americans under Kearny in 1846. The article is a good reference for those parciantes who want to assert the value of community need and equity in water use as opposed to the "modern" term of prior appropriation that pits users against one another. Ebright documents the ways in which water is allocated from 14th and 15th century Spain to colonial Mexico and New Mexico in both the Native American and Hispano communities and concludes that "Usually the principle of need/equity prevailed over prior use." Particularly in New Mexico, "A rigid winner-take all water system was inimical to community solidarity, and without community there was no surviving the harsh realities of frontier life."

A copy of Ebright's article is available on the website, www.southwestbooks.org, from The Center for Land Grant Studies, a nonprofit organization dedicated to research, education and distribution of books and other materials about the Southwest, with an emphasis on land and water rights issues of traditional communities in New Mexico.

Editorial: Santa Fe Ski Area Containment Coalition Fights Latest Ski Expansion Proposal

By Mark Schiller

The Santa Fe Ski Area is once again facing strong opposition to a proposal to expand its facilities. This time, however, the Santa Fe Ski Area Containment Coalition, which is comprised of downstream parciantes, environmental groups, Tesuque Pueblo, and other concerned local citizens, is being joined by the Santa Fe County Commission in its opposition to the project. The proposal calls for clear cutting 1,800 trees (1,630 on slopes over 30 percent) to allow the ski area to install a new, mile long triple chairlift to the summit of Deception Peak and extend three ski trails, which will be serviced by the new lift.

The county became involved because county land use regulations prohibit tree removal and development on slopes which exceed 30 percent. The commission claims that the ski area must apply to the county for a variance in order to proceed, but the owners of the ski area and the Forest Service (which manages the land and has already completed an Environmental Impact Statement (EIS) of the potential impacts of the development that grants approval for the project) claim county land use regulations do not apply to federally owned lands. A county attorney and the attorney for the containment coalition, however, counter that a California case which was heard by the United States Supreme Court ruled that local governments can enforce their own standards on federal land. It has also been demonstrated that the Forest Service EIS neglected to include a portion of the area that will be affected by the development.

Resolution of this issue could have enormous impacts on northern New Mexico. 28% of Santa Fe County, 51% of Taos County, and 70% of Rio Arriba County are controlled by the federal government. If local government is going to implement meaningful land use planning, they must have a mechanism for binding input on management of these federal lands. The old argument that the grandmother in Cleveland has as much of a stake in federally managed lands as local citizens just doesn't hold up when land based communities are engulfed by federal reserves whose management affects development over which they have little control.

While officials for the Forest Service, the county, and the ski area continue to seek a resolution to this problem, Charlie Doramei, the governor of Tesuque Pueblo and others are raising another issue: Who will the expansion actually benefit? The Forest Service claims it benefits the public at large, for whom they are providing "enhanced" recreational opportunity, and local citizens, who will benefit from increased jobs. But do these rationales hold water when they're closely scrutinized?

In the first place, statistics, local and nation wide, demonstrate that the ski industry is flat. In fact, since the "baby boom" generation, which made up the majority of skiers during the1980s and 90s, has hit its 50s, skier numbers have declined. Even though last winter's snow conditions were excellent, and local areas showed marked increases in use over the previous dry winters, their numbers were no where near what they had been during the peak years of the early and mid 90s. The ski industry and the Forest Service continue to promulgate the notion that "if we build it they will come," but the facts simply do not bear this out. Now that the ski industry is no longer growing, ski area expansions simply allow existing areas to better compete among themselves for a larger portion of a dwindling market. The Forest Service should not be sacrificing public lands to subsidize this battle.

Second, the ski industry does not provide the kind of jobs that have a significant impact on the unemployment and poverty that is epidemic in northern New Mexico. The vast majority of jobs created by the ski industry are low paying, seasonal, and without benefits or the prospect of significant advancement. These jobs reinforce the vicious cycle of exploitation and disenfranchisement rather than breaking it.

Third, the Forest Service claims its assessments evaluate "all" significant impacts and provide plans to mitigate them. But these assessments tend to isolate each potential impact and ignore cumulative and secondary impacts. I have never, for instance, read an EIS that assessed the potential secondary impacts of transferring water out of agricultural use into commercial use for snow making. These could include: taking land out of agricultural use and making it available for development; impairing an acequia's ability to divert enough water to have the hydrological power to reach all of its parciantes' fields; impairing an acequia's ability to maintain the membership necessary for maintenance and repair work; impairing ground water recharge upon which plant, wildlife, and human communities depend, etc. And what about all the induced development that is associated with ski area growth: second homes, condos, restaurants, and outfitters? Environmental assessments don't assess the impact this kind of growth has on the social fabric and infrastructure of rural communities. Furthermore, according to a study done by Colorado State University, industrialized recreation, such as downhill skiing, accounts for more negative impacts to public lands and wildlife than grazing, logging, or mining.

Fourth, the special use permits issued by the Forest Service for ski areas are "sweetheart" deals. They do not by any stretch of the imagination reflect fair market value for the lease of large tracts of public lands. It's one thing to give economically marginalized local people access to the sustainable use of public lands resources and another to line the pockets of the rich.

Let's face it, the Santa Fe Ski Area is a playground for the privileged that is subsidized by the government. It perpetuates the exploitation of people, negatively impacts the environment, and strains the local infrastructure. If the owners want a better share of the market, I have a suggestion: let them lower their prices.

Community-Based Forestry Alliance Organizes to Promote Economic Development and Restore Forest Health

By Mark Schiller and Kay Matthews

A coalition of northern New Mexico community foresters has been meeting over the last few months to talk about how rural communities can benefit economically and socially through improving forest health. The group calls itself the New Mexico Community-Based Forestry Alliance.

Specifically, the alliance has been meeting with New Mexico congressional aids and Forest Service representatives to discuss how to ensure that forest restoration monies, appropriated after last year's Cerro Grande and Viveash fires, hits the ground and stays in the community. Alliance members point out that all too often funding is spent on bureaucratic and administrative processes while community foresters, who possess the requisite skills for forest restoration, have to compete among themselves for thinning contracts which don't pay a living wage. Alliance members would also like to see some of this federal money used to build community infrastructure and to develop community capacity to administer the business aspects of restoration projects. In the past this often has been controlled by consulting groups who "micromanage" community organizations by writing business plans and grants and provided the accounting and other technical services.

Santa Barbara restoration area

So far this year forest restoration money has been allocated under three projects: 1) Four Corners Initiative, coordinated by the State Forestry division; 2) Title Four Community Assistance, administered by the Region Three Forest Service; and 3) Collaborative Forest Restoration Program (Senator Jeff Bingaman's bill). At the June 13 alliance meeting in Mora, community foresters told Forest Service and state forestry personnel that there had been poor communication regarding the kinds of projects that the Four Corners initiative would fund, and many forestry groups had wasted their time submitting proposals. Several alliance members also pointed out that the way the grants are administered results in competition rather than cooperation among forestry groups and that in the future these programs need to be better coordinated among the groups and between grant administrators and foresters.

Another problem with the process is that the Forest Service has not completed the necessary NEPA (National Environmental Policy Act) work to release new restoration projects necessary for the urban interface thinning and watershed restoration mandated by Congress. Ike DeVargas, of La Companía Ocho, pointed out that the Forest Service should be consulting with community forestry groups to choose and prepare critical areas for treatment that best meet the needs of the communities and the local foresters.

While everyone agreed that it is too late in this year's process to implement these ideas, they hope to formalize the alliance and sign memorandums of understanding with the Forest Service and state foresters that will ensure these needs are met in the next funding cycle (although there is no guarantee the same amount of money will be again be allocated). The alliance also hopes to coordinate a group grant proposal so that the work of individual forestry groups complements each other and avoids the duplication of services and equipment. It is also vital that the alliance coordinate the marketing of small diameter timber that will come out of these projects. Unless the alliance works to develop markets for value-added small diameter products, it could easily glut the firewood market.

At the June 13 meeting, and later at a meeting with Regional Forester Eleanor Towns, alliance representatives suggested working with the Forest Service to agree on a high profile target area slated for restoration - with the NEPA work complete - where the community forestry groups could begin to implement the collaborative process and demonstrate their ability to get the work done. A systematic process would be developed that could then be replicated all over the state as NEPA work is completed on other restoration projects. From the information provided by the district rangers who attended the Mora meeting, it appeared that the Gallinas watershed might fit this criteria.

Larry Roybal from the Forest Service regional office agreed to invite all the northern New Mexico district rangers to the next alliance meeting in El Rito. La Jicarita News will publish the date, time and location in the August issue.

Picuris Pueblo Releases Water Quality Data

By Rich Schrader and Robert Gomez, Picuris Pueblo Environment Department

The water of the Rio Embudo/Rio Santa Barbara watershed appears relatively clean for fish and livestock, but aquatic insects show some impacts from human development according to the Picuris Pueblo Environment Department (PPED). The healthy condition of our watersheds affects members of Picuris Pueblo and non-Indian residents alike. This simple fact calls for cooperation in sharing in stewardship of the watersheds that feed clean water to the acequias, rivers, bosque, and aquifers. As part of the watershed community, Picuris Pueblo has dedicated significant staff resources to monitor the water quality of the Rio Pueblo, Rio Santa Barbara, and Rio Embudo over the past 2 years. PPED shared the data from the on-going research effort at a water fair at the Peñasco High School on May 18, 2001.

Picuris Pueblo intends to use the data to discover potential problems in the water quality and health of the river. If problems are found, the tribe will identify areas where people can cooperatively find solutions to them. PPED conducts regular chemical and biological sampling at 10 sites on local rivers and compares the data with tribal water quality standards. Picuris Pueblo understands that the regulatory aspect to water quality standards is only as strong as the ability of people work together to resolve problems that degrade the rivers and water quality.

The Pueblo is committed to monitoring watershed health over a long period of time for several reasons. Determining a water quality problem often requires monitoring over several years. The data from monitoring can be very useful for helping people learn how their use of the river impacts people downstream. Picuris Pueblo is dedicated to stewarding the rivers of the area over time and sharing in the responsibility of making it a good place to live for people and animals.

The chemistry monitoring involves sampling the acidity/alkalinity of river water, turbidity, temperature, total dissolved solids and chemical concentrations in well water. The monitoring data shows that temperature was exceeded for fish at one site. All other measurements were within acceptable range for fisheries.

For the past several years PPED has collaborated with the New Mexico Environment Department on testing water quality in domestic wells. To date, the concentration of pollutants in wells has been lower than health standards for humans. PPED intends to monitor bacteria levels in streams in the coming year to study the risk to human health with direct contact with river water. Water quality is a critical issue for Picuris tribal members who rely on the rivers for traditional and spiritual practices that require primary contact.

PPED staff study the biology of the river ecosystem through sampling of benthic macroinvertebrate insects. Some of these insects are highly sensitive to pollution, either through soil erosion, habitat alteration, low flows due to irrigation, or chemical pollutants.

Benthic insects live in the water on the bottom of the river. The populations of the sensitive insects decline when water becomes scarce or pollution, such as from insecticides or leaky septic tanks, flows through the river. The results of the research from sample sites are compared to a "reference" site, which typically is an upstream site on the river that has very little disturbance from human activities.

PPED found that number and diversity of sensitive insects declined as the river winds through agricultural and urbanized areas of Peñasco on the Rio Santa Barbara. Possible reasons for the decline are due to water withdrawals, habitat destruction, and insecticides and nutrient loading from multiple sources. Excess nutrients in the river cause algae blooms, which in turn deplete the oxygen available for fish and benthic critters. The dry 2000 year put tremendous pressure on the insects by reducing the amount of water we need to share with the river. In some places in Peñasco, the river has been channelized and manipulated by people building houses directly on the riverbank and maintaining diversions.

A Stonefly (Plecoptera), needs cold, clean water to survive

The bug sampling on the Rio Pueblo indicates a similar decline in sensitive species numbers and diversity, but to a lesser degree than the Rio Santa Barbara. The lowest sites on both rivers just above the confluence of the Rio Embudo had the lowest species diversity, indicating that they are the most impacted sites in the watershed. People at the water fair had an opportunity to share their comments with PPED staff about the data. Several members of the public encouraged the staff to continue their work. One community member said that it was great to see people caring for the rivers, since, "most 25-40 year olds don't have a big concern, mostly elders care about how serious this is."

Locals Protest Mining Proposals

By Mark Schiller

Ogelbay Norton Specialty Minerals, which operates a mica mine near Vadito and a mica processing plant near Velarde, continues to face strong local opposition to expansion of its operations. The company, which has been battling Picuris Pueblo over expansion of its mine, recently announced that it is seeking permits from the state Mine Regulatory Bureau to also expand its processing facility. Los Vecinos Del Rio, a community action organization, immediately voiced opposition to the proposal as did many individuals from the area near the facility.

Concerns about expanding the processing facility focus on air quality, although locals also fear that seepage from tailings ponds could potentially contaminate groundwater. The company has already been fined $9,000 for air quality emissions violations by the New Mexico Environment Department's Air Quality Bureau. Residents complain that airborne dust from the plant has caused respiratory problems and mechanical failure of equipment ranging from backhoes to fax machines.

Kerrie Neet, chief of the state Mine Regulatory Bureau, said that due to the widespread community concern over this issue, the bureau will hold a public hearing in September or October to discuss the application.

Meanwhile, lawyers for Picuris Pueblo continue to fight the proposed expansion of the mining facility. The expansion would allow Ogelbay Norton to make their open pit mine more than two thirds of a mile long and over 400 feet deep. It would also permit the company to place waste rock and low grade ore on approximately 200 acres of surrounding Forest Service land.

Doug Wolf, a lawyer with the New Mexico Environmental Law Center, told a three member panel of the New Mexico Court of Appeals on June 21 that "It's the tribe's position they still hold title to this land." Arguing that the pueblo has the right to bypass the Mining Commission, Wolf asserted his client's right to sue the company in state district court under the state Mining Act's provision for citizen suits. In February of 2000 Judge Stephen Pfeffer ruled that the Pueblo had forfeited the right to protest the expansion application by not appealing it to the Commission within 60 days of approval of the application. A ruling on this appeal could take months. If the appeal is denied the Pueblo would not be able to protest the permit for the mine expansion unless Ogelbay Norton seeks to amend the permit or violates the conditions of the permit.