A community advocacy newspaper for northern New Mexico
Box 6 El Valle Route, Chamisal, NM 87521
Valles Caldera Preserve Gears Up For Another Grazing Season By Kay Matthews
Editorial: Techno-Fascism By Kay Matthews
Proposed Aamodt Adjudication Settlement Continues to Unsettle By Kay Matthews
Pueblo Water Rights Doctrine Overruled by New Mexico Supreme Court By Mark Schiller
By Kay Matthews
A resident herd of elk greeted Floyd Reed and his wife Lynnette on their trip to the Valles Caldera Preserve to present to staff and members of the Valles Caldera Coalition an overview of the progressive grazing practices Reed has employed during his tenure with the Forest Service and now as a consultant on rangeland management. The Preserve, governing the grazing program under the 2004-5 Environmental Assessment (and amendment), is gathering as much information as possible to help guide the program in the future (Reed also made a presentation to the Preserve board members in the Los Alamos office). This summer, 700 head of cattle belonging to Jemez Pueblo and several local permittees will be allowed in three of the Preserve's valles, as they were last summer.
Reed uses a grazing model for maintaining healthy rangeland with high plant diversity called the Grazing Response Index, which addresses: frequency, the number of times a plant is defoliated during the growing season; intensity, or how hard you graze; and time of year, if the plant has time to grow before or after grazing. Within the parameters of this model are the following fundamental concepts:
Don't graze the same place the same time of year every
Graze for the shortest time-frame possible.
Grace moderately heavy.
Give plants the opportunity to grow before the grazing
Give plants the opportunity to grow after the grazing cycle.
In any discussion of grazing on the Preserve, the talk always turns to elk. Reed addressed the elk "problem" &emdash; many believe the Preserve cannot sustain its prolific elk herds &emdash; during his discussion of grazing as a management tool. He recommended that the Caldera use cattle to disrupt elk grazing habits by grazing all the valles with a light touch rather than resting the valle that is the most overgrazed. If it is rested, the elk will stay in the overgrazed area and continue to graze. He also suggested that livestock grazing can be used as a follow up to prescribed burns to perpetuate treatment. For example, livestock can be used to suppress the growth of unwanted tree seedlings in a ponderosa pine forest that has been thinned and burned. Livestock can also be used to suppress weeds like cheatgrass that typically appear after fire has been introduced.
Reed showed the group pictures of these kinds of grazing practices employed in the West Elk Grazing Allotment near Paonia, Colorado, along with herding and low stress techniques these permittees use. (West Elk permittees and local Forest Service personnel have visited New Mexico several times, sponsored by the Quivira Coalition, to discuss their grazing techniques.) He also showed pictures of the healthy riparian areas that have benefitted from these grazing practices that keep cattle in the uplands of the allotment and away from the river during the critical time of sedge growth along river banks.
As conversations in the Preserve always turn to elk, so do they turn to the NEPA process (National Environmental Policy Act), which managers complain is often burdensome and limits flexibility. Reed agreed that the process needs to be more flexible to allow managers to set objectives and employ best management practices to achieve short-term goals with long-term monitoring. The Reeds planned to tour the Preserve with the staff the next day to put theory into practice by addressing on-the-ground conditions.
EcoVersity is now enrolling for its Permaculture Design Courses for the summer. Two classes will be offered: July 10th-23rd, August 28th- September 10th. In these 72-hour certification courses, students will learn about permaculture, a design system and set of principles (care for earth, care for people, share the surplus) that integrates all aspects of living sustainably on the land. Permaculture uses indigenous knowledge and contemporary innovations to teach pattern thinking and principles for designing site-appropriate environments. This class includes lecture, hands-on site assessment and design, field trips, special presentations and optional evening activities. Instructor Scott Pittman is an internationally acclaimed designer who has taught in over thirteen countries on four continents. For information call 424-9797, ext. 10 or visit www.ecoversity.org.
The Sheep is Life Celebration, presented by Diné be' iiná, Inc., will be held at Diné College, Tsaile, Arizona: pre-celebration workshops will be held on June 21-24, and free public events, demonstrations and seminars will be held on June 25-27. For more information please contact: Tahnibaa Naataanii, SIL Chair, at email@example.com or 505-793-4091; Malcolm Benally, ANA Project Director at
firstname.lastname@example.org or 928-660-1334; Roy Kady, DBI President at email@example.com or 928-656-3498.
After 12 years, the Final Supplement to the Final Environmental Impact Statement for the Agua/Caballos Proposed Projects has been released by Carson National Forest. In June 2002, the Carson issued a Final Impact Statement for the Agua/Caballos Proposed Projects (FEIS), along with a Record of Decision. The decision was appealed and the Appeal Deciding Officer withdrew the decision and instructed the Carson Forest Supervisor to: 1) complete the analysis of effects on management indicator species and 2) circulate a supplemental environmental impact statement (SEIS) for public comment and issue a new decision. This SEIS was circulated in July 2003. The Final Supplement to the FEIS includes responses to the seven comment letters submitted to the SEIS. The Record of Decision will implement Alternative G, as described in the FEIS, June 2002. Alternative G will thin 1,310 acres, treat 1,210 acres for insects and/or disease, commercially thin 2,379 acres, precommercially thin 1,693 acres, regenerate 79 acres of aspen, prescribe burn 79 acres of meadow, prescribe burn 1,986 acres of treated stands, offer 6.4 million board feet(MMBF) of sawtimber (6.1 MMBF within the Vallecitos Sustained Yield Unit to local operations and .3 MMBF outside the unit), and offer 6,039 cords of pine firewood and 790 cords of aspen firewood. Three new miles of road will be built, 16.7 miles will be reconstructed, and 43 miles of existing roads will be closed. This decision is subject to appeal.
By Kay Matthews
When I told La Jicarita friend and ally Chellis Glendinning my terrible tale of trying to help my bus contractor neighbors register their business on a centralized government website, she said, "That's techno-fascism, and it's rampant."
Techno-fascism is imposing a one-size-fits-all centralized bureaucracy on a diverse population of multiple-sized businesses comprised of people just trying to do their jobs: in this case, drive the buses that deliver Forest Service firecrews to forest fires. Which is what they've been doing, quite successfully, for almost 20 years.
This year, however, the first thing the Forest Service supervisor's office tells my neighbors is that they have to have a DUNS number, an official number assigned by Dun and Bradstreet, before the business can be listed in the official Forest Service file of available contractors. OK, they call the toll-free number and are assigned a DUNS number. Then the Forest Service gives them a website address where they must register their business in a centralized system (a system run by the Department of Defense) that lists every contractor in the country who does business with the government.
My neighbors do not own a computer, have never used a computer, and certainly have never registered for anything, bought anything, or browsed for anything on the internet. So I log onto the site for them, which takes 20 minutes to access on rural phone lines that urban, broadband users wouldn't even deign to use. I should have known immediately what was in store when one of the first instructions on the site cautions me to save data so I can come back to it later. All in all, I "come back" to the site at least ten times as my neighbors and I struggle to find the information it requests on five different required forms: General Information; Goods and Services; Corporate Information; Financial Information; and Points of Contact.
All of these categories have pages of questions that request information on a marketing contact and alternate, sales contact and alternate, accounts receivable contact and alternate; financial institution, routing number, bank account number, bank contact,and e-mail address for direct deposit of checks; type of business; name and type of prior business, ad nauseum. If you don't fill out every single line, with every single name, address, e-mail address, phone number, and alternate, the registration is incomplete. None of these categories allow a simple "Not Applicable" answer for those of us registering sole proprietor businesses with one employee: the bus driver. There are no sales, marketing and accounts receivable positions; there is no type of prior business or auxilliary business. And there is a healthy distrust of providing the government with a bank account number when for twenty years checks have been mailed to the post office or rural mailbox that has worked just fine.
When I finally realize just how long it is going to take me to finish this registration (besides the 20 minute wait to access the site, it takes at least 10 or 15 minutes to process the information in each category) I decide to find a computer with a broadband internet connection. On a friend's Powerbook the site informs me that some MacIntosh computers do not allow access to this Department of Defense site because of certain security set-ups. Does this mean that the DOE suspects that MacIntosh users are generally not good security risks, or that MacIntosh designers decided that the DOE is not user friendly?
Meanwhile, my neighbors, and many of their bus driver friends who are also bogged down in this debilitating process, decide they do not want to provide the government with their bank account numbers. When I call up the Forest Service and tell them this, the clerk says, "Then they won't get paid." When I ask to speak to the supervisor, he says,"Believe me, I know some people don't want to give out this information, but our hands are tied. This is a directive from Washington and we can't do anything about it." When I suggest that it might behoove the Forest Service to have a workshop for contractors who might be reluctant to supply some of this information, explain the procedure, and help them through the registration process, he says, "We barely have the staff capability to do our own work, much less theirs." I ask for his boss's number in Albuquerque, but she's out of town.
Two weeks later I finally finish the registration. My neighbors and their friends figure out a way to supply the government bureaucracy with the financial information it demands without completely jeopardizing their privacy. The process leaves all of us a mess: the website technology staff that listens to complaints all day long from frustrated contractors; the Forest Service staff that listens to complaints all day long from frustrated contractors; the frustrated contractors who believe the process is a total waste of time and an invasion of their privacy; and me, the friend of the frustrated contractors whose blood boiled and guts churned over the insensitivity and complicity of the bureaucrats who designed this system that demands the entire world buy into technology that makes our lives more complicated, more anxious, and less our own. Welcome to the world of techo-fascism.
By Kay Matthews
Pojoaque Valley residents opposed to the Aamodt water adjudication proposed settlement (see La Jicarita, April 2004) were heartened to hear the news from the congressional delegation that federal funding for the water delivery system, a critical component of the settlement, isn't forthcoming. The delegation had already warned that if there was significant opposition to the settlement they would not pursue funding in this government appropriation cycle.
And there is indeed significant opposition. The settlement guarantees Pojoaque, Nambe, San Ildefonso, and Tesuque pueblos existing and development water rights to 3,660 acre feet of water, while non-Indian Pojoaque Valley residents must agree to cap their existing domestic wells and hook up to a water delivery system (a third tier of 2,269 acre feet of development rights will also be procured for the pueblos). Lawyers who negotiated the proposed settlement say this offer is the best deal the non-Indian residents can get because the Native American pueblos have first priority rights to the water. However, according to an informed source, it is more likely that a priority call would result in the limiting of domestic wells, not a capping of them.
A group of water rights owners in the Pojoaque Basin has formed the Pojoaque Basin Water Alliance to educate the public and encourage citizens to oppose the settlement. The group has held public meetings over the course of the last few months and plans two meetings in June (June 10 and 24th, 7 pm, at the Frank B. Lopez Gym in Pojoaque). The group's first newsletter states the "Principle of Water Democracy: Water is the source of life and not a commodity to be used to divide people. We cannot leave the management of our most precious resource in the hands of government and private corporations. We, the people, must assume our proper role and demand Water Democracy for all citizens."
The reference to leaving the management of "our most precious resource in the hands of government and private corporations" refers to the proposed water delivery system that will be operated by the County of Santa Fe or contracted to a private corporation. This regional system, which plans to import surface water from the Rio Grande, both native and San Juan/ Chama water, via an infiltration gallery located on San Ildefonso Pueblo, could also supply water to the city of Santa Fe and county land outside the Pojoaque Basin.
This does not sit well with non-Indian water rights owners who would lose up to 76% of their rights in a transfer of water from wells to a regional system. Even though well owners rarely use the domestic well allocation of 3-acre feet, the idea of giving up water rights, being forced to pay hook-up fees, and facing service charges for utilizing a system that, according to the newsletter, will "feed the continued growth of Santa Fe," is a slap in the face. While there is a provision in the agreement that separates the domestic well rights from water piped to the city or county, there is also a provision that would establish well fields, if necessary, to supplement Rio Grande water to the water delivery system, and that water could also "feed the continued growth."
Proponents of the settlement claim that the city and county will help defray the cost of hook-up fees and service charges, but the Alliance believes there is no guarantee that funding will be available. The group thinks the proposed settlement is fraught with other uncertainties as well. Although the county has proceeded with water quality testing at the infiltration gallery site, it has yet to negotiate easement rights with San Ildefonso Pueblo.
Neither has the county nor the city identified any source of water for the proposed delivery system. Possible sources include saved water from already secured rights or San/Juan Chama water. As Orlando Romero, a member of the Alliance, pointed out in the April issue of La Jicarita, "San Juan water during this prolonged drought is almost nonexistent. The Azotea tunnel has realistically, for all practical purposes, been shut off. . . . And the Navajos are next in line to get priorities off this flow, so how can the city, county, state or feds base a settlement on such a tenuous supply of water &emdash; unless the real intent is to divert all our well rights to these massive new water fields at San Ildefonso." This San Juan/Chama water may already be earmarked to settle the adjudication suit in the Taos Valley.
Acequia parciantes in northern New Mexico are also concerned about where this water will come from, despite assurances by settlement proponents that the county is not interested in "raiding" acequia water rights. County lawyers have identified irrigation well rights in the Sunshine Valley, in addition to the Top of the World water rights the county has already acquired and been trying to transfer since the mid-1990s (see La Jicarita, February 2004). The infiltration gallery, on San Ildefonso land, is located north of the Otowi Gauge, but the water delivery pipeline would carry water south of the gauge to the city and county. Historically, the State Engineer has not allowed transfers of water rights from north of the gauge to south of the gauge, a policy that has provided defacto protection to acequias and agricultural land in northern New Mexico. The New Mexico Acequia Association has met with Santa Fe County attorney John Utton to express its concern.
Alliance members are well aware that the proposed settlement is dividing their communities and creating
bad feeling between pueblo and non-pueblo peoples. This is particularly true with regard to Pojoaque Pueblo, which area residents have long criticized for its groundwater pumping to irrigate two 18-hole golf courses. Under the proposed settlement the Pueblo will expand its groundwater rights from 236 to 1,375 acre feet.
There is also disagreement among the members of the Rio Pojoaque Acequia and Water Well Users Association (RPAWWA) over the settlement: president David Ortiz is on record supporting the proposal while vice-president Orlando Romero resigned from the organization in protest. Several years ago, at a regional water planning meeting held in Pojoaque, members of the RPAWWA, including Ortiz, dismissed the idea of a regional water system, touted then as a solution to the area's water demands but not put forth as part of the Aamodt settlement, and called for implementation of a wastewater treatment system instead. Valley residents wonder why the RPAWWA now supports the delivery system, especially when it doesn't include a wastewater treatment component.
Finally, many folks involved in the case believe that the promulgation of the proposed settlement is driven by the fact that Pete Domenici will, in all likelihood, retire from the Senate at the end of this term, and the senator has long promoted a regional water system and long promised the money to fund it.
By Mark Schiller
On April 7, 2004, the New Mexico Supreme Court made an important decision with regard to one of the most controversial issues surrounding water allocation in New Mexico. In a case pitting the Office of the State Engineer (OSE) against the city of Las Vegas, with the Gallinas River acequias and the Storrie Project Water Users Association entered as amicus curiae (an organization or person not actually party to the litigation who will be impacted by the decision and therefore entitled to contribute to the court record). The Supreme Court ruled that New Mexico does not "recognize the pueblo rights doctrine."
So what is the pueblo rights doctrine and how will its being overruled affect water allocation for the city of Las Vegas and the rest of the state? As lawyer and historian Malcolm Ebright discussed in his August 2001 article in La Jicarita News, "Distortions of History: Are We Doomed to Repeat the Past?", the pueblo rights doctrine "grew out of the need of the city of Los Angeles to establish municipal water rights superior to water rights of adjacent irrigators." Lawyers argued there was an historic basis for assuming municipal rights took precedence over other water users in the laws of antecedent sovereigns, Spain and Mexico, whose validity was protected by the Treaty of Guadalupe Hidalgo. Citing the 1783 Plan of Pitic, which the Spanish government used as a template for the settlement of communities in California, Texas, Arizona, Colorado, and New Mexico, California lawyers claimed "the doctrine recognizes the right of the inhabitants of Mexican or Spanish colonization pueblos to use as much of an adjoining river or stream as necessary for municipal purposes. The doctrine [also] contemplates the expansion of the pueblo's right to use water in response to increases in size and population, and if necessary, the right can encompass the entire flow of the adjoining water course." In other words, a municipality could take as much water as it needed and go on indefinitely expanding its use to encompass the entire aquifer without regard to the needs of other water users dependent on the same source.
A 1958 New Mexico District Court recognized that the pueblo rights doctrine, as affirmed by the California courts, applied to New Mexico. This decision, commonly referred to as the Cartwright Decision, was made in a case between the town of Las Vegas, as represented by its water supplier Public Service Company of New Mexico, and other water users on the Gallinas River, who believed their water rights were being impaired by the town's water use. This issue has been litigated and argued ever since that decision.
In its appeal to the New Mexico Supreme Court, the OSE argued that the pueblo rights doctrine has no historical validity and "that the perpetually expanding nature of the pueblo right conflicts with the fundamental principle of beneficial use that lies at the heart of New Mexico water law." While the Supreme Court rejected the OSE's historical validity argument that the Cartwright Decision was inconsistent "with the Spanish and Mexican practice of equitable apportionment and common use," it agreed with the OSE that the "doctrine is incompatible with water law in New Mexico, and violates public policy."
In overruling the Cartwright Decision the Supreme Court cited case law asserting "that an appropriator can only acquire a perfected right to so much water as he [or she] applies to beneficial use." Applying this principle, the court "recognized that water users have a reasonable time after an initial appropriation to put water to beneficial use" even though "a municipality may be given a more substantial 'reasonable time' for its population growth than a typical water user." The pueblo rights doctrine, the decision went on to say, is "not limited by the reasonable time requirement . . . instead, [it] contemplates an indefinite expansion to meet growing demands of an increased population, regardless of how small the population of the initial pueblo and how long it takes the pueblo to expand. This aspect of the pueblo water right intolerably interferes with the goals of definiteness and certainty contemplated by prior appropriation" that is the most fundamental principle of New Mexico water law. Interestingly, the court rejected the OSE's argument that the pueblo rights doctrine had no historical validity, not because the OSE was unable to demonstrate that the antecedent sovereigns practiced equitable water distribution (the Plan of Pitic specifically states "the residents and natives shall enjoy equally . . . water privileges . . . in common with the residents and natives of the adjoining and neighboring pueblos"), but because the practice of equitable apportionment and common use also conflicts with the court's interpretation of the doctrine of prior appropriation.
In addition, the decision asserted "that the pueblo rights doctrine unduly interferes with the state's regulation of water rights" with regard to its duty to meet interstate water delivery requirements to Texas and its duty to conserve a vital resource.
However, in overruling Cartwright, the Supreme Court acknowledged that the city of Las Vegas's reliance on the Cartwright Decision is "substantial" and therefore the decision that will fully apply to all subsequent litigation involving the pueblo rights doctrine should only have "a limited . . . application with respect to the City." It remanded the case to District Court "to determine the most appropriate equitable remedy that will balance the City's reliance on Cartwright with other water users' reliance on New Mexico's system of prior appropriation."
David Benavides, a lawyer for the Gallinas River acequias, told La Jicarita he believes that "we're still looking at a potentially long, drawn out process. The only real shortcut would be an out of court settlement and the parties involved don't have a good history." Benavides feels that the city has not demonstrated much willingness to negotiate an equitable compromise, while the acequia leadership has been more open minded. "I don't know if the decision has changed city officials' minds." Benavides went on to explain that while the Gallinas acequias still face a difficult battle, the decision is very good news for the acequia community at large. "I don't think the acequia community ever has to worry about another municipality trying to approrpiate water through the pueblo rights doctrine again," he said.
Non municipal water users throughout the state hope Benavides is right and that the court's decison sends a clear message to other municipalities that unbridled development can't come at the expense of their neighbors.
The homework assignment for the members of the Taos County Regional Water Plan steering committee was this: Identify what you think is the primary water problem in Taos County and say what you would do to solve it.
The assignment was made by Taos County Planner Allen Vigil, who heads the effort to create a water plan by 2005, at the second meeting of the steering committee in May. The purpose of the plan, part of the Interstate Stream Commission (ISC) regional water planning program (there are 16 planning regions in the state), is to characterize water supply, current and future water demands, and alternatives for meeting future water needs in Taos County. The task of the steering committee, comprised of representatives from major water user groups and water management agencies such as acequias, county and municipal governments, federal and states agencies, and individual farmers and ranchers, is to help identify issues and concerns of local communities, review and discuss alternatives as they are developed, and be a conduit for information to their constituencies. Two more meetings will be held before the end of 2004; one in the northern quadrant of the county and one in the southern.
At the May meeting the team of professionals collecting data to analyze water supplies in Taos County presented an overview of how it is proceeding. Geoff Rawlins of the New Mexico Bureau of Technology explained that his team's role is essentially to bridge the gap between science and policy. Through an analysis of the geology, geophysics, and hydrogeology of Taos County water planners will develop a zone map to outline development and density based on current and future water supplies. Rawlins used the example of how his team's work helped expose the myth of the vast lake beneath Albuquerque that many thought would provide the city an endless water supply. The Bureau is collecting existing data and using technology such as aeromagnetic measuring to analyze subsurface geology. The Bureau will then, as it has already done in areas like Albuquerque and Placitas, develop quadrant maps of water tables and aquifers in zones throughout the county.
Another team of professionals, John Shomaker and Associates, is collecting data on existing domestic wells (there are 7,400 wells in Taos County), springs, surface water, and river levels. As several steering committee members pointed out, gathering information on surface water may be hampered by the ongoing Taos Valley adjudication suit, but hopefully, details of the proposed settlement may soon be made public.
Tony Benson, in association with Taos Soil and Water Conservation District and UNM Taos, has been mapping groundwater levels in the entire county using hand-held GPS units and testing individual wells for levels of 40 major chemical elements (which have generally revealed high quality water).
Planners will also sponsor evening meetings in outlying county communities to keep people informed of plan developments. Steering committee regional contacts are:
Wilfred Rael &emdash; Northern Region, 751-4165
Mary Mascareñas &emdash; Southern Region, 587-2775
Duke Cozart &emdash; Western Region, 758-3441
Bennie Mondragon &emdash; Central Region
Twenty-three years of claims, counter-claims, court decisions, appeals, and finally a Colorado State Supreme Court decision would seem long enough to rectify an egregious wrong: Ya Basta! But apparently Lou Pai, current owner of the Taylor Ranch, formerly part of the Sangre de Cristo Land Grant, plans to fight Costilla County residents to the bitter end over the most recent Supreme Court decision allowing them access and use rights to their former common lands, "la Sierra."
Pai claims that as a new party to the lawsuit &emdash; he bought the ranch in 1997 from Jack Taylor, who fenced the ranch and denied access to local residents in the 1960s &emdash; he doesn't have to abide by the court's decision. Pai, as you may recall, is a multi-millionaire former Enron Corporation executive who sold his company shares between 1999 and 2001 for $353 million before the stock collapsed (he is currently named in dozens of shareholders lawsuits). Since he bought the ranch he has beefed up security and vigorously pursued trespassing claims. While the Supreme Court ordered Pai to negotiate terms for livestock grazing and timber and firewood harvesting, Pai's lawyers filed a March 17 motion in Costilla County District Court to deny access.
In the latest development, an access hearing has been set in District Court for June 11. The judge &emdash; without hearing oral arguments &emdash; will rule on Pai's motion as well as those filed in response by the plaintiffs' attorneys. In the afternoon, the judge will also hold a status conference with the defendant's and plaintiffs' attorneys to rule on three issues: 1) whether the nine people already certified have immediate access rights; 2) clarification of the class of property owners in Costilla County having access rights (the Supreme Court granted landowners who are successors in title to the original settlers of the Sangre de Cristo Land Grant access and use rights); and 3) appointment of a master who will make recommendations on access rights.
Arnold Valdez, one of the plaintiffs in the case who holds degrees in architecture and planning, has been hired by the Land Rights Council, the San Luis-based land grant advocacy organization that has long been involved in the case, as project director and planner. His first job is to complete an inventory of la Sierra's resources and develop a management plan that will guide the community's use of the mountain for livestock grazing, timber, and firewood harvesting.
According to Valdez, the plaintiffs believe the District Court won't reopen the case and will abide by the Supreme Court decision rendered in 2002. He is currently researching and gathering data about conditions on the ranch and as soon as access is permitted, consultants will undertake a biological assessment of rangeland, watershed, and forest conditions. Valdez and his team will also hold community forums to document historic use, and with all this information will create a map of the ranch with overlays of use patterns and biological data.
La Jicarita News will update readers in the July issue on the June 11 decision; for more information, Arnie Valdez can be reached at the office of the Land Rights Council in San Luis, 719 672-1019.
Copyright 1996-2002 La Jicarita Box 6 El Valle Route, Chamisal, New Mexico 87521.