Volume VIII

September 2003

Number VII

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State Legislative Interim Land Grant Committee Meets in Española By Kay Matthews

ANNOUNCEMENTS

Water Transfer Battles in the Middle Rio Grande

Forest Service Adds Insult To Injury With Latest Ski Area Decision By Mark Schiller

Editorial: Water Transfer Protests By Kay Matthews

Dixon Farmers' Market a Big Success

State Legislative Interim Land Grant Committee Meets in Española

By Kay Matthews

"Whether or not the government or the courts ever correct past injustices, at least let it be known that they occurred. It would be well to recall the land grants and lawsuits of northern New Mexico's past as current litigation continues to decide the ownership of precious land and water resources in the state. Even Niccoló Machiavelli, that Renaissance political advisor with no more regard for the rights of the people than was expedient, advised the princely rulers of his day that a 'prince should . . . refrain from [taking] the property of others, for men are quicker to forget the death of a father than the loss of a patrimony.'"

&emdash;Malcolm Ebright, Land Grants and Lawsuits in Northern New Mexico

Members and advisors of the New Mexico State Legislative Interim Land Grant Committee turned out in full force for their third meeting of 2003, this time in Española: Senate pro tem Richard Romero, House Speaker Ben Lujan, Rod Adair, Debbie Rodella, Miguel Garcia, Bernadette Sanchez, Richard Martinez, Don Tripp, Eric Youngberg, and Joseph Carraro. Ben Lujan told the audience, made up of representatives from many New Mexico land grants, "I'm here to address issues that should have been addressed when we became a state."

Committee chair Miguel Garcia, who conducted the meeting in English and Spanish, explained the mandate of the committee: to review existing law; hear testimony; investigate the relationship of land grants and the Treaty of Guadalupe Hidalgo; explore economic development issues; delineate Native American concerns; and recommend changes to the current law.

In his introductory remarks, Española Mayor Richard Lucero pointed out that Española was an auspices setting for the meeting: "When you walk out the door here you will see 20 land grants, while the city itself encompasses six of them." He told the committee that one of the biggest issues that will have to be addressed is the disposition of water rights. He asked and answered his own question: "Should waters be adjudicated to land grants? Absolutely." He acknowledged that land grant and water rights restitution will require Congressional action, but stated "through your efforts we can correct the many mistakes that have hurt so many people."

A panel comprised of Norman Martinez, director of the Oñate Center, Robin Collier, executive director of Wool Traditions, and Malcolm Ebright, author and historian, presented the committee with an overview of the work they have been doing to establish an electronic land grant database. The Oñate Center, just north of Española, has been designated a land grant center by Rio Arriba County (it also received national designation under a bill sponsored by Representative Tom Udall) and in May of 2002 received a grant to compile a database of 250 land grants. Several years ago, national legislation was passed that mandated the General Accounting Office to list and define community land grants in New Mexico. The first part of the eport was issued in September of 2001 and the second installment is due out any day. But as Ebright told the committee, the GAO has studied only community land grants, while he, Collier, and Martinez are studying and listing both Hispano and Native American land grants in the following categories: Hispano/Private; Hispano/Community; Hispano/Quasi-community; Hispano/Grazing; Indian/Community; Indian/Grazing; and Indian/Cruzate.

With the aid of power point visuals, the panel showed the committee an example of how a grant would be listed in the database: a scan of the original document; a translation of the grant document; a summary of the history of the grant; and in a sidebar, the date granted, acres confirmed, location, officers, the type of grant, and a reference to related information that can be searched. They hope to eventually have maps to accompany each listing. As Ebright explained, "We need this information to help make decisions how to get the land back." Additional funding is needed to complete the database and make it available to land grant heirs on CD and the internet (see southwestbooks.org).

Representative Debbie Rodella suggested the compilers of the database collaborate with the Secretary of State, who was authorized to begin gathering land grant documents several years ago, and other land grant organizations so that the interim committee could write legislation to fund their efforts.

Next on the committee's agenda were presentations by Herman Agoyo of San Juan Pueblo and Regis Pecos of Cochiti Pueblo regarding Native American land grants and land claims. Agoyo, current councilman, former governor, and past chairman of the All Indian Pueblo Council, read an impassioned statement that emphasized the need for the committee to help redress many years of injustice to the Native American community by addressing Indian land grants as their first priority, before Hispano land grants. He cited legal precedence for asking this, such as the Repatriation Act of the New Mexico Cultural Properties Act. "We have never extinguished our cultural and aboriginal ties to our land," he said. He went on to describe the extent of these aboriginal lands, particularly with regard to San Juan Pueblo, which extended from its current boundaries (12,234 acres) north towards the Colorado border, south to the Sandia Mountains, east across the Rio Grande, and west to lands that now include other pueblos, Forest Service and BLM lands, and the town of Chamita. "I ask you to initiate protocols with all Native American tribes that occupy these aboriginal lands."

During discussion with the committee after Agoyo's presentation, it became clear that there are several extant Native American land claims in New Mexico, which make the land grant issue extremely complicated, with many overlapping components. As Agoyo pointed out, it took Taos Pueblo 64 years to get its most sacred site, Blue Lake, transferred into their trust. Regis Pecos informed the committee that a coalition of the Pueblos plans to make a visual presentation to the legislators that will identify critical land claims and overlapping Hispano land grants. "This is an incredibly emotional issue," he said, "but I hope that we can succeed in not opening old wounds. We are a cultural union of all people born out of this community. We have to find a way to redress injustice that is the least disruptive to all the people who have been displaced."

Pecos got a big hand from the audience with that statement, and the theme of Hispano-Native American shared ancestry and shared goals was preeminent during the ensuing discussion of legal issues involving community land grants. Rio Arriba County Attorney Ted Trujillo and Assistant Planner Moises Gonzales focused their presentation on the fact that 70% of Rio Arriba County is under federal jurisdiction, leaving communities no where else to grow except in the river corridors on irrigated land, negatively impacting water resources. Trujillo tied this to the land grant issue by using the example of Dixon, a village surrounded by BLM land that was formerly part of the common lands of the Embudo Land Grant, a grant not recognized by the Court of Private Land Claims. If this grant or others that lost their common lands were returned to the communities, these lands could provide much needed housing as well as well sites and other resources. Trujillo compared them to the village of Truchas, part of the active Nuestra Señora del Rosario, San Fernando y Santiago Land Grant, which has its own water delivery and wastewater systems: "Being an active land grant enables a community to respond to its own needs," he said. Gonzales also cautioned the committee that unless the headwaters of our communities are protected from contamination caused by infill and development, the downstream cities of Española, Santa Fe, and Albuquerque, which plan to pump surface water from the Rio Grande, will be negatively impacted. "We as planners in Rio Arriba County need a partnership of Hispanos and Native Americans working together to achieve our goals of protecting our irrigated lands through trades or access rights among Indian trust lands and land grants. We need new ways of looking at land ownership."

The committee toured the Truchas Land Grant the next day and met with representatives of the Santa Cruz, Pueblo Quemado, and Las Trampas grants.

ANNOUNCEMENTS

• For the past few months the Interstate Stream Commission has been holding hearings across the state to gather input from citizens regarding the development of a State Water Plan. Twenty-nine meetings have been scheduled between July 9 and September 11, 2003. When completed, the plan should "provide policy recommendations to balance water needs while complying with state law and enhancing our ability to comply with federal regulations." The schedule for September meetings in central and northern New Mexico is as follows (all meetings are held from 7 to 9 p.m.):

Las Vegas; 9/2/03; City Council Chambers, 1700 N. Grand Avenue

Santa Fe; 9/3/03; Morgan Hall - State Land Office Bldg; 310 Old Santa Fe Trail

Moriarty; 9/4/03; Civic Center; 202 Broadway

Isleta Pueblo; 9/8/03; Old Palace Casino; Exit 215 off I-25, take Broadway

• The Santa Fe Community Foundation Piñon Awards will be held on Thursday, October 2 at 6 p.m. at the Lensic Performing Arts Center, with a reception immediately following at the Eldorado Hotel. The awards ceremony and reception are open to the public; a private benefactor dinner will follow the reception at 8 p.m. Tickets are $100 each. Please call 988-9715, ext. 3.

The American Friends Service Committee (AFSC) is seeking a full-time Program Coordinator to develop and implement the work of the AFSC in New Mexico. The job requires experience in social and economic justice advocacy and community organizing in the areas of migrant workers, immigrant rights, death penalty, youth leadership and/or other peace and social justice issues in New Mexico. Strong administrative, organizational, budgetary, and communication skills are required. The salary range begins at $32,000, depending on qualifications and experience. The position begins October 2003. If you are interested in applying, e-mail Pasadena@afsc.org or call 626-791-1978 to request an application. Completed applications and resumes are due by Thursday, September 4th at 5:00 p.m. by e-mail, fax, or U.S. Mail.

Water Transfer Battles in the Middle Rio Grande

As mayordomo of La Rosa de Castilla, numero tres, a Placitas acequia association, Lynn Montgomery is a busy man. He is currently involved in two water transfer protests that threaten the viability of his acequias. In October of 1999, Montgomery filed a protest of an application by developer Bob Poling to transfer 11 acre feet of water per annum from three acres of land south of Isleta Pueblo to wells in his Placitas subdivision. The State Engineer found for the developer and granted the transfer. Montgomery appealed that decision to District Court. In July, the judge, in a summary judgment, granted the application. But according to Montgomery, this ruling will now allow him to file an appeal (he is represented by Taos attorney Mary Humphrey) before the Court of Appeals, where he believes he can get better consideration of the legal issues.

Lynn Montgomery

The State Engineer, in his decision, ruled that the shown depletions that would occur to La Rosa de Castilla Spring would be "de minimus". Montgomery contends that this is an arbitrary and meaningless term that could ensure developers win all protests brought by upland, spring-fed acequia parciantes and eventually cause their acequia sources to dry up. Montgomery further claims that the burden of proof has been placed on him rather than on the applicant, as the law requires. "Attorneys and officials for the State Engineer have demonstrated an unfair and unprofessional bias favoring new users and are openly hostile to acequia rights," Montgomery told La Jicarita. "We have a 1912 district court judgment granting the parciantes of La Rosa de Castilla all of the waters from this source, and we have presented evidence that local groundwater pumping is going to deplete our spring flows. The Applicant and the OSE also found that these effects would occur but to a lesser degree. Nevertheless, the State Engineer chose to ignore all this and dismiss the protest as 'de minimus'. We feel it is imperative that we continue this case to the bitter end, as all acequias are under attack."

In another case, Montgomery has filed a protest of an application by Waycor, Inc., to transfer 31.7 acre feet of water from agricultural land south of Albuquerque to a gravel pit 3.4 miles downhill from La Rosa de Castilla Spring, the main source of his water right. "I am doing this one 'pro se', with no lawyers or hydrologists," Montgomery says. "It costs a lot to do one of these with professional help, and I don't have the financial resources. The process is also very time consuming, and all the other parties are impatient with someone unfamiliar with the complex legal process such a protest entails. At the hearing, I was able to testify that my acequia is dry, that we had taken flow measurements that conflict with the findings of the applicant's hydrologist, and presented a legal history of our acequia. I was also able to elicit testimony from the hydrologist that the pumping resulting from the transfer will at some point deplete our spring flows."

In his post-hearing final arguments, Montgomery laid out his position and findings according to the three criteria used to evaluate such transfers; impairment, conservation, and public welfare.

Impairment

Montgomery claims that "La Rosa de Castilla, numero tres, has been in place and in use for over 150 years and is entitled to an expectation of continued benefits and use to its keepers. If the State Engineer denies this protest and continues to allow these depletions and all other such depletions to Protestant's source, eventually Protestant's source will dry up. This is not a 'de minimus' effect. All surface waters of the Rio Grande Declared Basin are fully appropriated. If Protestant's sources are reduced, Protestant has no recourse to appropriate other waters. There is no 'extra' surface water for any uses."

Conservation of the Resource

With regard to this issue, Montgomery argues that applications that seek to transfer surface water rights to ground water rights require a "deeper analysis" of the relationship between drawdowns on aquifers and surface water diversions: "Groundwater pumping is occurring all over the Basin and must be taken fully into account in making water appropriation decisions. Once the spring-fed resources are reduced, it will be only a matter of time before groundwater recharge to the Rio Grande will be negligible." He goes on to state that "Surface water is highly variable and not guaranteed from year to year. Groundwater is pumped regardless of climactic conditions. In many years, surface water rights are entitled to less water than it says on the piece of paper and in some years, to none. This variability must be carried with the rights through the transfer, or there is no sense or reality to the meaning of offsets."

Contrary to the Public Welfare

While there has not been much public welfare precedent concerning water rights transfers, Montgomery believes that "Private interests must bow to the common interest" and that the State, "which holds the water in trust for the public, has a duty to see to the public interest and defend it. This requires defending the resource. Anything that reduces the efficiency and health of the water resource reduces its usefulness and value."

He also raises the issue of priority in his discussion of public welfare: "Priority administration is the only means the State has to manage the water day to day, in emergencies, and during water shortages. It is critical that the State enforce priority, so that New Mexicans can continue to control and manage their water resource. When priority administration is unenforced, which seems to be the current policy, the seniority of water rights becomes meaningless. The State Engineer has stated that about 85% of surface rights are unadjudicated. If the State does not protect old, unadjudicated rights in some fashion, then the State cannot claim to be carrying out priority administration. If one cannot protect and defend a water right, one cannot keep it. Thus a massive selling off of senior water could occur. The State Engineer has made public statements that he believes water rights need to be moved from agriculture to other uses and has supported legislation to create water banks to facilitate this. This demonstrates an aversion to carrying out priority administration and little regard for traditional rights, communities and their economies." This policy, Montgomery asserts, will create instability in the water market, and these traditional agricultural rights will be transferred to the highest bidder.

He ends his argument by pointing out that it is "in the public interest" to restrain new uses of water and to stop draining the publicly owned aquifers; to not pursue economic growth at the expense of senior surface rights holders and the integrity of the resource; to insure that all sectors bear the burden of water shortage equally; to manage our water resource according to the laws of priority; to provide security for water rights holders and not leave them vulnerable to an unfair legal process; and to "plug up all the leaks and seeps offered by water rights transfers and to manage our resource for the good of us all."

La Jicarita News will monitor the outcome of both protests as they proceed before the State Engineer and through the courts.

Forest Service Adds Insult To Injury With Latest Ski Area Decision

By Mark Schiller

In 1998 the Camino Real Ranger District's "Collaborative Stewardship" program won the Kennedy School of Government's prestigious Innovations in Government Award recognizing the district's efforts to make forest management more democratic and inclusive, develop efficient business techniques, and improve forest health. Since that time the entire administrative staff at the district has turned over and the current administrators, in my opinion, have compiled a dismal record of incompetence, inefficiency, and lack of accountability (see the March 2002 La Jicarita News for a complete analysis of the failed Santa Barbara Grazing Allotment Rehabilitation Project). Carson National Forest Supervisor Martin Chavez's August 5 "Finding Of No Significant Impact" regarding work which the district illegally permitted at Sipapu Ski Area continues this sad history of mismanagement. Let's look at the record.

On July 3, 2000, Bruce Bolander, then owner of the ski area (I will return to the issue of ownership later), wrote a half-page letter to Camino Real District Ranger Cecilia Seesholtz briefly outlining work the ski area proposed to undertake within its permitted boundaries as part of a plan to expand its facilities. This letter contained no site specific work plan, no work schedule, and most importantly, no mention of environmental assessments which must be done in accordance with the National Environmental Protection Act (NEPA) in order to gauge the potential impacts on the forest, the Rio Pueblo, and the infrastructure and social fabric of the surrounding communities. On July 12, 2000, Seesholtz wrote a three sentence response to this letter concluding "We have received your summer operation plan and have found it within the parameters of your special use permit." As a result, several areas were clearcut, others selectively cut, and at least 125 cords of wood and saw timber were removed. The tree removal increased the area's skiable terrain from 34 acres to approximately 65 acres. The ski area also purchased a new chair lift and other equipment necessary to implement this expansion. Ironically, on the very day Seesholtz signed off on the summer work plan she met with more than 20 community members and representatives from the Rio Pueblo/Rio Embudo Watershed Protection Coalition, the New Mexico Acequia Association, and the Santa Fe Group of the Sierra Club to hear their concerns about the ski area's expansion plans. During that meeting she was asked to inform the group of any proposed actions on Forest Service land associated with Sipapu. She failed to make any mention of the "Summer Work Plan."

It was not until November of 2000, as a result of ski area advertisements in The Taos News and on the radio, that the coalition of concerned groups and individuals became aware of the expansion work. Members immediately contacted Seesholtz to ask how this work could have been permitted without necessary assessments and public input. She responded that assessments had been done years ago which gave her the authority to permit the work. The coalition members asked to see those assessments. Seesholtz said she would find them. Two days later she called and claimed she had been misled by members of her staff: there were no assessments in place, and she had ordered the ski area to stop all work and seal off the affected area.

In an effort to gain permission to proceed with the project, the ski area subsequently sued the Forest Service for injunctive relief. On September 4, 2001, Federal Judge Bruce Black granted a hearing on Sipapu's claim that it would suffer irreparable financial harm if it was not allowed to proceed with the project. On September 11, Judge Black issued a preliminary injunction granting the ski area the right to proceed with the project as outlined in the summer work letter and ordering it to post a $100,000 bond against possible environmental degradation. He also directed ski area owners to work with the Forest Service to plan and undertake environmental assessments.

This decision set a horrible precedent by undermining the basic intent of the NEPA process: allowing work on public lands to proceed before there was an assessment of what the potential impacts of that work might be. It also denied the public the right of due process. Inexplicably, the Forest Service neglected to appeal the judge's decision. Seesholtz, despite having been asked by coalition members to inform them if the ski area took legal action, did not do so until after the preliminary injunction was granted, making it impossible for the them to participate in the suit. Coalition members felt that the public's best interests were not represented by the Forest Service legal team and their concerns were once again ignored.

At the same time, coalition members learned that the Bolander family, which previously maintained the ski area was a locally owned mom and pop business that was sensitive to local concerns, sold the majority interest to outside investors who went on record stating that this expansion is just the first phase of a multiphase plan to dramatically expand ski area facilities. Despite investing over $500,000 and creating a new business (Sipapu Recreational Development II), these nvestors initially claimed that there had not been a change in ownership that would necessitate a new special use permit (SUP) for the operation of the ski area. While the Forest Service required that the new owners apply for a new SUP, it is, in my opinion, trying to further subvert the public input process by proposing to first modify the existing SUP (issued to the Bolander family) to include all the new work and then administratively issuing a new SUP to the new owners, which includes the modifications and is not subject to appeal.

To comply with the judge's order concerning environmental assessments, the Forest Service sent out a scoping letter in the fall. It was at this point coalition members learned that the ski area had trespassed on approximately 30 acres outside its permitted boundaries. The Forest Service has continually refused to acknowledge this trespass and says only that it seeks to "modify the previous boundary by approximately 30 acres to incorporate the new improvements." The agency, however, clearly does not have the authority to do this because the July 3, 2000 letter regarding the "summer work plan", which was the subject of the injunction, states: "All work to be done is within our current permit area." This statement certainly implies the owner was aware of the boundary limits. Furthermore, the map the owner included with the work plan showed the work area within the permitted boundaries. The work allowed by the injunction can include only what was outlined in that letter. The injunction, therefore, does not apply to areas outside the permitted boundaries. Forest Service SUP regulations state: "Changes during construction, or at any other time, from the approved plans or location shown in the application or authorization shall be allowed only with the prior approval of the authorized officer." In addition, the trespass impacted an area protected by the Roadless Initiative.

More than 50 community members and environmental groups commented on the scoping letter, expressing their concerns which ranged from the document's numerous procedural violations and self contradictory statements to impacts on cultural and historical properties, water quality and quantity, fish and wildlife habitat, community infrastructure, and induced development. Once again the Forest Service ignored or glossed over these concerns when it issued its Environmental Assessment (EA) in December and then again when it issued its Finding of No Significant Impact in August of this year.

Let me cite just one example of the kind of convoluted, self-contradictory reasoning the Carson Supervisor used to justify his decision. Every proposed action on public land must have a "Purpose and Need." As a purpose and need for this action the EA states there is a "need for improving the variety of beginner, intermediate and advanced skier terrain at a higher location on the mountain" which will "provide an incentive for skiers to remain at Sipapu for a longer period of time, rather than looking to go to other ski areas in the region to fulfill their skiing needs." Then, despite asserting that increasing the amount and variety of skiable terrain will make the ski area more economically viable by increasing skier visits in the "Purpose and Need" section, the "Comparison of Effects By Alternative" section claims there will be a "negligible [and therefore without impact] increase in skier visits." If that is the case, what exactly is the purpose and need? Moreover, why should the Forest Service even be considering a proposal to expand the ski area facilities when the ski area, by the former owner's admission, was far from utilizing the full capacity of its current facilities. The former owner is on record saying that the facility was being utilized at less than 33% of capacity. One long time ski area employee placed the actual figure at about 17%. Furthermore, at least two ski areas in the vicinity of Sipapu (Ski Rio and Cuchara), which are both larger and have more diverse terrain than Sipapu, have gone bankrupt recently, demonstrating that increased size and more varied terrain does not insure economic viability.

The coalition of groups and individuals who have been expressing concern about the impacts of Sipapu's expansion now feel the Forest Service is simply saying that it's going to sweep all of these violations, contradictions, and inadequacies under the rug and if the public isn't happy about it, it can sue. Earlier this year the Watershed Protection Coalition requested a full financial disclosure of expenses related to Sipapu from the forest supervisor. He responded that because of the intricacies of the Forest Service bureaucracy, it would be impossible to calculate. Obviously, however, this administrative malfeasance has cost the American public a significant amount of money, considering the labor involved in the assessments and mounting legal costs. Meanwhile, the district and supervisor's offices continue to claim the "Collaborative Stewardship" program is an ongoing success. I personally know at least a hundred farmers, grazing permittees, community foresters, and environmentalists who would beg to differ.

Editorial: Water Transfer Protests

By Kay Matthews

It is both encouraging and discouraging to recount Lynn Montgomery's water transfer protests in the Placitas area (see page 3): Encouraging that acequia parciantes like Lynn stand ready to do battle all across New Mexico to protect our acequia system and discouraging that they so often need to do so.

Co-editor Mark Schiller and I are also protestants (two of 20) in a water transfer application by Santa Fe County to transfer 600 acre-feet of groundwater from Top of the World Ranch in northern New Mexico to the county via the proposed infiltration gallery on San Ildefonso Pueblo. That transfer is on hold until a feasibility study of the project is completed (see La Jicarita, October 1999). Numerous other protests are being played out across el norte.

A particularly disturbing protest, however, recently took place in a neighboring village. I say disturbing because it involved a protest of a transfer of water within the community, parciante to parciante. It pitted almost an entire village against an individual farmer who sought to use water from a spring adjacent to his land that the acequia commission considers part of the acequia system. It is pointless to assign blame or culpability to any of the parties involved in the protest because the fight, unfortunately, was largely precipitated by a power struggle between neighbors. I find this very disheartening because internecine fights like this damage the acequia community's political standing and involve the Office of the State Engineer in issues that should be dealt with by the community itself.

These kinds of conflicts also take great personal toll on the people involved. In this particular case, many parciantes were offended that a relative newcomer to their village was attempting to "steal" their water, while the farmer, who grew organic produce for his livelihood, was forced to move his farm to another village. Everyone is the loser: one individual's actions threaten the tradition of repartimiento de aguas, or the sharing of water in a time of drought, while the village loses a viable value-added cottage industry that could serve as a model for sustainable economic development.

As I said in my June editorial regarding our cities' endless search for more water: The first line of protection for our acequias are communities that know their battles lie with those who seek to commodify this community resource, not with each other.

Dixon Farmers' Market a Big Success

Since July 23rd there has been a weekly Farmers' Market in downtown Dixon. Every Wednesday, between 4:30 and 7:00 p.m., fifteen to twenty-five vendors bring their produce and goodies to sell to the public. There have been producers from Dixon, Rinconada, Pilar, Embudo, Velarde, San Juan Pueblo, Picuris Pueblo, La Mesilla, Taos, Peñasco, and Ojo Sarco. The market offers an abundance of fruits and vegetables, as well as roasted corn and chile, homemade tortillas and tamales, breads, baked sweets, homemade ice cream, jams and jellies, soap, potted plants, dry chile, atole and chicos, eggs, yogurt, and flowers. There are table and chairs to relax in while enjoying the fresh food and live music. The market has become a weekly celebration in the village and also a convenient way to do some grocery shopping and support local growers and producers. We welcome everyone to come join us in the fun and purchase some healthful and delicious locally grown food. For more information call Rachel, 579-4151.

Rachel McCarthy and Felicity Fonseca with last year’s greens