A community advocacy newspaper for northern New Mexico
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Editorial: Water for Sale to the Highest Bidder By Kay Matthews
By Kay Matthews
My talk today is called 'Disarming the West.' This is a paradoxical title for my speech as I've spent the last 20 years arming the west. I'm a fraud."
This was University of Colorado professor Patricia Nelson Limerick's opening remark at the Quivira Coalition's annual meeting, "Bridging the Urban/Rural Divide." Limerick was referring to her work as one of the "new historians", whose teachings have tried to deconstruct the biased history of western settlement as told from the viewpoint of American and European imperialism, which has largely ignored the Native American and Hispano presence in the American West. Now in her "collaborative and congenial" mode she explained that she was better able to bring "the enemy", or those who continue to see the rural West as theirs to exploit through continued urbanization and suburbanization, into a dialogue with their rural neighbors. \
This resonated with many in the room who have been involved in our own rural/urban divide in New Mexico. During the 1980s and 90s and continuing today, the movement by urban environmentalists to try to shut down all commercial logging on public lands - Zero Cut - and remove all cattle - Zero Cow- has created enormous hardship for forest dependent communities. As cities and counties look to el norte for water rights to settle the Aamodt adjudication and underwrite unlimited urban and suburban growth, acequia and ranching communities organize to keep their water in its area of origin. In northern New Mexico, most collaborative attempts to work with environmental groups and public lands managers (particularly the Forest Service) to protect rural communities have failed. The Quivira Coalition has achieved some success in its collaborative efforts to work with ranchers in central and southern New Mexico.
Dressed in full cowgirl regalia - boots, flared skirt, and western style shirt - Limerick explained to the group that one of the best ways to bridge the urban/rural divide ("We have a lot of years behind this divide. We can't resurrect the folks who brought us this dilemma to hang them.") is to exploit the powerful symbol of the American cowboy. This mythic image materialized in direct response to the rise of urbanization and industrialization in the 1870s and 80s and appealed to those urbanites who saw the cowboy as a symbol of what they had lost. While western ranching (and the myth of the cowboy) remained viable largely because of social and political policies such as the Homestead Act, the cowboy image acknowledges human hybridism and allows the urbanite to identify with those who remain connected to the land. She cautioned, however, that the cowboy image is hard to manage, primarily because it reinforces "loyalty to an exaggerated sense of individualism . . . that weakens ranching and family and . . . makes it hard to direct social policies that sustain agriculture in political settings."
But if that urban/rural coalition "that is waiting to happen" does prevail, our sense of fatalism can be overcome and change is possible. There will be an opportunity to bring individual and collective well-being together to help define both the private and public good. Although the days of western exploration and settlement are over, the same energy and sense of adventure they elicited can be achieved in restoration efforts across the West. This is the message the Quivira Coalition has been trying to deliver through its analysis and sponsorship of numerous on-the-ground land and riparian restoration projects over the past few years.
Limerick's funny and provocative talk ended on a particularly interesting note. Someone from the audience asked what she thought the movie Brokeback Mountain, the story of a gay relationship between two cowboys, did for the myth of the American cowboy. Without skipping a beat she answered that it allowed men to acknowledge the burden they bear by having to be "tough". Just as the urbanite can acknowledge his or her connectedness to the land, so can the cowboy acknowledge his vulnerability and connectedness to people.
Also on the morning's agenda was David Benavides, staff lawyer for New Mexico Legal Aid, who discussed in more detail the urban/rural divide over our state's most precious resource - water. As Benavides explained, there is a one-way movement of water to urban areas. He described it as the Manifest Destiny of water: the ideology that growth trumps everything and the leadership - or really, the lack of leadership - that is willing to satisfy that growth no matter what the consequences.
Jake Kosek, UNM professor of Anthroplogy and American Studies and David Benavides
Benavides pointed out that while Interstate Compacts protect New Mexico's water from being sold and moved out of state, no such compact protects water in its area of origin intrastate. While most water politicos believe in the market economy - selling water to the highest bidder - their support of interstate compacts that protect New Mexico's water could extend to compacts that keep water in its area of origin, thereby sustaining our rural communities.
Don't forget the Organic Farming Conference set for February 24-25. The conference is sponsored by Farm to Table, the New Mexico Department of Agriculture, the New Mexico Organic Commodity Commission, and New Mexico State University Cooperative Extension Service. Featured speakers include: Fred Kirchenmann of the Leopold Center for Sustainable Agriculture; Miley Gonzales, the New Mexico Secretary of Agriculture; and Jo Ann Baumgartner, Director of the Wild Farm Alliance. There will also be organic production and marketing workshops, a large exhibitor hall, and delicious organic food. For more information call Joan Quinn at 505 841-9067 (Albuquerque), e-mail firstname.lastname@example.org, or Le Adams, 505 473-1004 (Santa Fe).
The 2006 Wildfire Risk Reduction Grant Program targets at-risk communities by offering financial assistance to help defray the costs of preparing Community Wildfire Protection Plans (CWPP), reducing fuels, fire prevention and community outreach projects. Applicants must complete a CWPP as a pre-requisite to all other activities. A priority for 2006 will be to assist communities that have implemented a CWPP with fuel reductions. Grants up to $50,000 will be considered; a 10% cost share is required in the form of in-kind or cash contribution. Grants requests are due to the New Mexico Association of Counties office by 5:00 pm on March 1. Please contact Joy Esparsen, Intergovernmental Specialist, New Mexico Association of Counties, 505 983-2101, email@example.com. for information, or download an application at www.nmcounties.org.
The Ojo Sarco Acequia Association, Las Trampas Land Grant, and the New Mexico Acequia Association hosted an acequia governance workshop on January 7 in Chamisal to discuss the role of acequias as local institutions of government and the importance of acequia bylaws. Janice Varela, New Mexico Acequia Association community organizer, explained the importance of new amendments to acequia bylaws that require commission approval of water rights transfers and allow acequias to establish waterbanks. The meeting was attended by local mayordomos and commissioners from the Peñasco and Chimayó areas, some of whose acequias have already incorporated these amendments into their bylaws.
New Mexico Legal Aid attorney Ryan Golten also attended the meeting and both she and Varela told the parciantes that they are available to meet with acequias, one on one, to provide technical assistance to help update or amend bylaws. They can also provide information on how to acquire assistance for acequia rehabilitation projects. Janice Varela can be reached at the New Mexico Acequia Association office, 505 955-9644 and Ryan Golten can be reached at New Mexico Legal Aid, 1 800 373-9881.
By Kay Matthews
During the holidays we received a fax entitled "Wall Street Buzz! Water . . . The Next Oil" from a company called Royal Spring Water. The fax went on to say, "In the next 6 years the bottled water industry will grow to over $420 Billion globally. Worldwide, about 470.4 billion gallons of water is [sic] pumped out of the ground every day. That equates to 11.2 billions barrels of water - about 165 times the amount of oil produced in the world each and every day. Look at who's been jumping into this lucrative market . . . General Electric, ITT industries, Siemens AG, Tyco International and Dancer Corporation as [sic] just some of the big corporations that have invested billions of dollars to get into the water business." The company then gives us all the statistics that show clean drinking water is becoming a diminishing resource and therefore, instead of working to make sure that everyone has access to clean water as a human right, we should start investing in water bottling companies and make a lot of money.
Those of us who are concerned that everyone has access to water, a public resource, continue to engage in the adjudications, transfer protests, and litigation currently extant in New Mexico. Following is an analysis and update on some of these high profile cases.
Top of the World (TOW) protestants (I am a protestant along with fellow editor Mark Schiller) met in early December with Santa Fe County attorney John Utton, Santa Fe city attorney Kyle Harwood, Pojoaque Acequia and Well User's Association attorney Mark Sheridan, and Pojoaque Basin Water Alliance attorney Fred Waltz (among others) to discuss the county's offer to limit use of the TOW 588 acre feet/year (afy) to help supply the 750 afy of future water rights for non-Pueblo water users in the Aamodt adjudication in exchange for dropping the protest. The County currently is under contract to purchase an additional 1,088 afy of TOW water rights purportedly to help settle Pueblo water rights in the adjudication. When several protestants told Utton they believe these water rights should stay in their area of origin, he said that if the transfer is protested the Pueblos will likely go after the San Juan/Chama water rights that are currently designated for settlement of the Abeyta adjudication in the Taos Valley. This is an unsettling scenario in light of the fact that a settlement of the Abeyta adjudication is thought to be imminent, with some sort of water sharing agreement between Taos Pueblo and valley acequia users expected. The proposed settlements to the Aamodt adjudication have been so controversial because there has been a lack of equity or attempt at water sharing between the four pueblos and the non-Pueblo residents involved. It is rumored that Governor Richardson's office is promoting the Aamodt settlement as the template for future adjudications.
Continuing Aamodt settlement negotiations, which are conducted in private, have apparently resulted in some minor changes to the conceptual Proposal that was released several months ago (see La Jicarita News, November 2005) but have not been released to the public. There has been a delay in the release of the proposal because of disagreements among the governmental agencies over future administrative control of water rights once a settlement is achieved. A status conference with District Court Judge Martha Vasquez is scheduled for January 18, with public meetings to present the latest version of the proposed settlement to follow in February and March. Governmental parties, including the Pueblos, are expected to sign off on the proposal by March. But other parties to the negotiations, including the Pojoaque Basin Water Alliance, are not prepared to sign off. The Alliance continues to take the position that the settlement does not address important issues and may never be implemented. The board supports the Top of the World protest and is also concerned about Santa Fe County's proposal to transfer remaining TOW water rights for Pueblo use and would like to see that transfer protested as an argument for keeping water in its area of origin.
Top of the World water transfer protestants again met with Santa Fe County attorney John Utton in late December. Also present at the meeting were members of the Pojoaque Basin Water Alliance. These meetings have been facilitated by the New Mexico Acequia Association, and this time negotiations centered on protestants' concerns to protect acequia water rights. Because the transfer of additional water will be necessary to settle the Aamodt adjudication, both the County and the Pueblos are looking for additional rights, and the protestants want to use their leverage in these negotiations to ensure they are not transferred from acequias.
Also, because Alliance board members were present, the discussion focused on the fear that the proposed settlement to the Aamodt adjudication will only open the door to future growth and development in the Pojoaque Valley, both Pueblo and non-Pueblo, and agriculture will continue to be marginalized. TOW protestants are scheduled to meet with the Aamodt settlement mediator after the status conference on January 18.
This protest seeks to stop a transfer of surface water rights from Valencia County to groundwater wells in a subdivision in Placitas. This protest has been lingering as long as the Top of the World protest (filed in 1999) and is particularly irksome to me because of its location. Co-editor Mark Schiller and I lived for twenty years in Placitas, where we built a house and had two children. The gentrification of the area eventually drove us out, in 1991, and continued growth has overwhelmed this traditional land grant community. Mark and I, along with Lynn Montgomery, one of the Lomos Altos protestants, worked to try to control growth through county regulation and developer oversight, but more and more local folks joined in the development boom as contractors and subcontractors, and commuting Albuquerque suburbanites soon became the predominant population.
House being built above Acequia la Rosa de Costilla spring and Las Huertas Creek
The water situation in Placitas was precarious even when we lived there. The village itself is supplied with domestic and irrigation water from spring-fed ponds, which periodically dry up as drought affects run-off from the Sandia Mountains. The wells that serve the vast outlaying areas (houses currently extend miles up SH 165 from I-25, through the village, up to the national forest boundary of the Sandias, and out for miles north of the village towards San Felipe Pueblo) depend on rivers of underground water that fill rock fissures and are also affected by run-off from the Sandias. When we built our house in the 1980s our first well went dry, as did most of our neighbors'. As the subdividers came in the late 80s and 90s, they drilled very deep wells that accessed the Rio Grande basin.
The Lomos Altos subdivision, along with the Cedar Creek subdivision, are both owned by a former back-to-the-land Placitan who has made a lot of money building high-end houses. The three protestants to the transfer claim that the subdivision wells would impair their priority well, spring, and acequia water rights, which are in the vicinity of the development. They claim the transfer constitutes a new appropriation of groundwater because depletions would not be offset at the protestants source of water. The Office of the State Engineer (OSE) argues that the applicant only has to offset depletions at the transfer location and that the depletions from the applicant's pumping are "de minimus" (immeasurable).
New well being drilled next to a twenty-year old house
This case began in 1998 when Sandoval Environmental Action Community (SEAC - a Placitas environmental group) sued the OSE because the applicant failed to provide proper notice of two proposed transfers in a mainstream newspaper. SEAC won and the applicant had to reapply. Four area residents filed a protest (the remaining three protestants are Lynn Montgomery, Katherine Harris, and Bob Wessely); the OSE agreed to hear the Lomos Altos transfer case first (there is also a proposed transfer to the Cedar Creek subdivision). The OSE denied the protest in 2000 based on its "de minimus" ruling. The protestants appealed to District Court, which also denied the protest. The protestants appealed to the Court of Appeals, which rendered a split decision against the protestants. One of the judges disagreed with the OSE argument that there was "extra" water in the stream system that supplies the protestants' spring: "I am not convinced that whether a system that is 'hydrologically connected' in the entire MRGAA [Middle Rio Grande basin] answers this case's problem of small location-specific springs being impaired by groundwater pumping for a 106-unit residential development. Relinquishing surface rights in Valencia County might not have much to do with making sure there is enough water in Las Huertas Canyon to feed a spring. Under our case law, impairment of water rights is a factual question to be resolved on a case-by-case basis."
This was an encouraging statement that recognized the need to have a much clearer definition of impairment based on fact, not OSE policy, and the protestants again appealed their case, this time to the New Mexico Supreme Court. Amici briefs on behalf of the protestants were entered by 1000 Friends of New Mexico, Amigos Bravos, and the New Mexico Acequia Association. Briefs on behalf of the applicants were entered by the cities of Alamogordo and Las Cruces, the County of Santa Fe, and the El Prado Water and Sanitation District (concerned that any ruling that this is indeed a new appropriation would hurt their ability to transfer water). The case was heard on November 16, and it could take up to six months for a decision to be rendered.
At the Supreme Court hearing the lawyer for the applicants tried to put a good spin on the case by claiming that the developer was trying to be a good community member by installing a water system for his development rather than allowing individual wells. What she failed to say is that this community water system will still have to pump enough water to serve over a hundred houses whose combined square footage will probably exceed 500,000 square feet of fancy kitchens, multiple bathrooms, Jacuzzis, and outdoor watering for landscaped patios. And that it is only one of dozens of similar developments that use just as much water.
We heard similar rationales many times when we lived in Placitas, as development after development popped up on the semi-arid landscape in areas that once were home to sand and sage. A viejito once told us that if there hasn't been a settlement of people on a certain area of land for over 150 years, there's a good reason: it's uninhabitable. But in today's market, nowhere is uninhabitable and nothing is inappropriate. Santa Fe's own homeboy, designer Tom Ford, thinks he's being a good neighbor by cutting back a few hundred square feet on his 17,000 square foot home proposed for Talaya Hill. That he claims the right to such conspicuous consumption is unassailable. Thankfully, there are folks like Lynn Montgomery who continue to challenge that underlying assumption.
By Mark Schiller
United States Attorney for the Court of Private Land Claims Matthew G. Reynolds' 1894 Report to the U.S. Attorney General on the adjudication of the Antonio Chávez grant concludes: "I deem this case one of the most important I have tried, as it settles the legal status of quite a number of other claims in the Territory that are pending before this Court, that is, that from April 1823 to November 21, 1828, there was no authority vested in any Provincial official, or body to dispose of the public lands of the Republic." Although this decision, which overturned the long-standing (1854-1894) presumption that the official or governing body that made a land grant had the authority to do so, still had to stand the test of an appeal to the Supreme Court, Reynolds' message to the Attorney General was prophetic: he used the legal precedent established by the defeat of this legitimate land claim to defeat other land claims that the Spanish and Mexican governments would unquestionably have held valid.
The history of this grant and its adjudication is a long and incredibly complicated story, a battle between the United States government and a rich and powerful capitalist entrepreneur whose "collateral" victims were poor and disenfranchised Indo-Hispano land grant residents. The legal technicality by which Reynolds defeated this claim completely contradicts Spanish and Mexican customary law and usage and demonstrates the limits to which credulity and justice were stretched in order to accommodate the demands of colonial expansion.
Antonio Chávez was a 19th century elite who lived in the ranching and farming settlement of Belen, about half way between Albuquerque and Socorro. Sometime before 16 February 1825 Chávez, claiming that he was "very much crowded in the possession of my property and its appurtenances as well as in the pasturing of my stock as in the extension of agriculture, and desiring to remove to another place of greater capacity with the honest purpose of enlarging both businesses . . ." addressed a petition to the Mexican Territorial Deputation requesting a tract of land he referred to as the "San Lorenzo Arroyo."
The grant was clearly intended for grazing, but Chávez also noted in his petition that it would protect one of the main avenues from Indian attack and provide employment for the impoverished residents of neighboring grants (the Socorro and Sevilleta).
Upon receipt of the Chávez petition, the Territorial Deputation solicited the input of Governor Bartolomé Baca. Baca responded with a lengthy letter listing numerous reasons why the grant would benefit the local settlers and further the colonization plans of the territorial government.
Based upon the governor's recommendation, the Territorial Deputation, on 3 March 1825, approved the grant. The reader should note that the granting process was highly formalized, thoroughly documented and completely official. Moreover, although Reynolds tried to assert that title to the claim had never been perfected by continuous occupation and use, testimony during the adjudication proceedings before the Court of Private Land Claims clearly demonstrated that Chávez fulfilled all of the criteria outlined in his petition and the governor's recommendation.
As was the case with many private Spanish and Mexican land claims, by the time the claim was adjudicated it had been conveyed to an Anglo speculator, Martin B. Hayes. Hayes was widely known in New Mexico as the former owner (1872-1886) of one of the west's richest copper mines, the Santa Rita (also formerly known as the "Chino" and currently as the Phelps Dodge mine) and correspondence from his lawyer demonstrates that he purchased the Chávez claim because it reportedly contained rich coal deposits.
So how was a clearly legitimate claim that was owned by a wealthy Anglo and represented by high-powered lawyer defeated before the Court of Private Land Claims and the Supreme Court? It was defeated because the decision by the Court of Private Land Claims and its affirmation by the Supreme Court was based on a gross misreading and misapplication of Mexican colonization laws and the failure of both courts to consider how the customary law of Mexican courts would have applied.
Specifically, the decisions of both Courts were predicated on United States Attorney Reynolds' assertion that between 18 August 1824 and 21 November 1828 only the chief executive of the Republic of Mexico had the authority to sever land from the public domain and that the executive had not conferred that authority on anyone in the provincial government of New Mexico. This position not only misreads the intent of the Mexican government in promulgating the colonization laws of 1824, but, more importantly, ignores the body of customary law and usage that had developed in New Mexico since its recolonization in 1692.
Let's briefly examine Reynolds' argument. During the 1820s the Mexican government was going through a period of civil, political, and military upheaval that resulted in the creation and dissolution of several governments and constitutions. On 31 January 1824 the Mexican Congress adopted a new constitution that provided that the provincial territories were subject to the federal authority. On 18 August 1824 that Congress adopted the Colonization Law of 1824, whose sixteenth article provided "The government, under the principles established in this law, shall proceed to the colonization of the territories of the Republic." In his brief to the Supreme Court regarding this issue, Reynolds asserted: "It does not seem that the executive branch of the Government took any steps to carry into execution the powers conferred by this article of the colonization law until November 21, 1828, when a very complete system of regulations was promulgated, conferring authority upon the governors of the Territories, with the approval of the Territorial deputations, to grant the public lands subject to the restrictions imposed by the colonization law under which regulations were issued." He went on to say: "If therefore we are to look to the law of August 18, 1824, for authority, the [Antonio Chávez] grant having been made in March 1825 . . . it should appear that some regulation under the sixteenth article of the colonization law had been promulgated by the executive, but I do not believe that it has been contended, at any stage of this litigation . . . that any action on the part of the executive branch of the Mexican Government looking to the disposition of the public lands in the Territories had ever been taken prior to November 21, 1828; therefore it must resolve itself to the fact that within the Territories between August 18, 1824, and November 21, 1828, there was no Territorial official or official body authorized to dispose of the public lands for the nation. It is true the executive could have authorized any one he saw proper to designate, but it fully appears that he did not exercise this power."
Reynolds' theory and both the Court of Private Land Claims and the Supreme Court's affirmation of that theory, that no one but the federal executive had the power to grant land from the public domain for a period of over four years, is absurd. Even Reynolds' own recital of this history, in the book of Spanish and Mexican land laws he helped to compile, concedes that before and after this four year period local officials had the authority to grant land from the public domain. Why would a new government that acknowledged extending its frontiers was critical to legitimizing its authority and protecting itself from colonialist intervention by France and the United States, suddenly suspend a practice that had been the basis for consolidating and extending its authority in the region for over one hundred and thirty years? And why would it, after a period of four years, then reinstitute and formalize that policy? It seems obvious that the newly constituted federal government, because of the continuing unrest which followed the change in sovereignty, simply had more pressing issues to deal with and presumed that local authorities, especially in a Territory as remote from Mexico City as New Mexico, would continue to make decisions critical to meeting their own subsistence needs. In point of fact, Reynolds relied on the confusion created by all the upheaval in the Mexican government to deliberately misconstrue the intent of the colonization law by insisting it be interpreted narrowly rather than within its historical context.
Moreover, all land grants made in New Mexico during this period, and there were more than a dozen, had been made under the same local authority and several had already been confirmed by Congress. A reasonable test of the Antonio Chávez grant's validity, for which there was an entire body of legal precedent, would have been the question: Did the Mexican government, during the twenty-three years (1825-1848) from the time of its granting to the time it was ceded to the United States, repeal or revoke it? The answer, of course, is a resounding "No." Yet there's ample documentation that both the Spanish and Mexican governments were not reluctant to repeal or revoke grants when they thought it was warranted. Furthermore, Reynolds failed to demonstrate one instance in which the Mexican government did actually rescind a grant made during this period because it asserted that local officials exceeded their authority.
Ironically, the decision of the Court of Private Land Claims in the Antonio Chávez case explicitly asserts that in order for the Court to confirm title it must appear "that the claimant could have gone into the courts of Mexico and demanded as a matter of right that his title be made complete and perfect, had the territory not been acquired by the United States." This statement completely disregards the fact that if the courts of Mexico had, indeed, adjudicated the validity of the Chávez claim, it would have been judged by the standards of customary law. According to land grant historian Malcolm Ebright, "Customary law in New Mexico governed both the substantive rules and procedures followed by judges."
If we apply the standards of customary law in Mexico during this period, which both the Court and the United States Attorney deliberately chose to ignore, it becomes abundantly clear that the courts of Mexico would have upheld the legitimacy of the Antonio Chávez grant. Continuous settlement or use of a grant was the most important criteria for validity under both Spanish and Mexican governance. As we have already noted, testimony given during the adjudication demonstrated that Chávez fulfilled all the promises outlined in his petition.
Why wasn't the large body of Spanish and Mexican customary law applied to land grant adjudications by the Court of Private Land Claims? Ebright asserts, "In New Mexico prior to United States occupation, evidence of custom was found in the decisions of the alcaldes, ayuntamientos and the acts of the government. Since English [Anglo] common law is also composed of decisions in actual cases, it should not have been difficult for Anglo-American lawyers and judges to understand Hispanic customary law. The problem, then as now, was that these decisions were never translated, organized and studied the way common-law cases are. The United States government had the expertise to do this, but . . . it was not in its interest to do so." The courts did not reference Spanish and Mexican common law because those courts represented the colonial interests of the United States rather than interests of justice and equity.
While it may be difficult to sympathize with the defeat of a capitalist land speculator like Martin B. Hayes (despite the legitimacy of his claim), bear in mind that the precedent established by this case was used to defeat other legitimate claims that resulted in the dispossession of long-standing, subsistence-based settlements. Moreover, Reynolds was able to extrapolate this specious precedent and apply it to a group of land claims whose original granting papers had been lost or destroyed and certified copies had been made by subsequent officials. Claiming that those officials did not have the formal authority to make copies, Reynolds asserted that the copied grant papers were not legitimate evidence of the authenticity of the original grant. He thus defeated several community claims for which there was abundant archival evidence of their legitimacy.
Reynolds had little if any concern for the issue of justice and judged his success as U.S. Attorney for the Court of Private Land Claims solely by how many claims he defeated or reduced. Referring to the toll the ethos of corporate capitalism has exacted upon American society, historian William Appleman Williams suggests an explanation for Reynolds' ruthlessness: "We are role-players in a huge and powerful system that is increasingly capable of creating the actors it needs out of the human beings it is supposed to serve. But acting the part written by the system destroys both our essential humanness and our essential Americanness."
Copyright 1996-2002 La Jicarita Box 6 El Valle Route, Chamisal, New Mexico 87521.