La Jicarita News - Community Advocacy for Northern New Mexico

The 40th anniversary commemoration of the land grant activist raid on the Tierra Amarilla Courthouse, held June 2 at the Oñate Monument and Visitors Center, demonstrated that the spirit of those activists still burns brightly. The room was filled with three generations of land grant activists: those who actually participated in the Alianza Federal de las Mercedes, an organization formed by Reies López Tijerina in 1962 to obtain federal recognition of the legitimacy of Spanish and Mexican community land grants; the leaders of the movement today who are working for political and legal redress; and the third generation of high school and college students who grew up in northern New Mexico and want to use their skills to maintain the traditional communities of northern New Mexico.

Although Tijerina was unable to attend the commemoration because of illness, his daughter Rosita, who was the only woman to participate in the raid at the age of 18, gave an emotional account of that day and the subsequent harassment of La Alianza by the FBI and New Mexico State Police. "I went willingly at my father's request. I still remember the bullets flying around me. Violence is not in my heart but we were driven by the corrupt injustice that caused us to take the law into our own hands." Rosita was jailed twice after the raid and abducted by a group of undercover agents who threatened to rape her. Her mother's house was bombed, as were the homes and offices of other Alianza members. Her father, who won acquittal from charges stemming from the courthouse raid, subsequently spent two years in federal prison for destruction of Forest Service property associated with La Alianza's direct action occupation of portions of former land grants that had become national forest.

The next speaker, David Correia, pointed out that the Tierra Amarilla raid does not define what La Alianza was all about. Correia, a professor of political geography at the University of Maine, wrote his doctoral dissertation about land tenure struggles in northern New Mexico. La Alianza, under the leadership of Tijerina, sought international recognition of the United States violations of the Treaty of Guadalupe Hidalgo, which he asserted protected or guaranteed not only property but civil and cultural rights as well. Correia explained that La Alianza had been under government surveillance long before the courthouse raid, and as early as 1964 the FBI tried to label members as communist agitators. As part of the COINTELPRO program to coordinate actions against what it termed "subversives," the government labeled Tijerina a "Rabble Rouser" and put him and La Alianza headquarters in Albuquerque under constant surveillance. This led to harassment by the New Mexico State Police and the John Birch Society. According to Correia, police and FBI harassment against La Alianza "balkanized the heirs and fomented distrust," which contributed to its demise in the early 1970s.

New Mexico Legal Aid attorney David Benavides and Rio Arriba County attorney Ted Trujillo followed Correia's presentation. They told the audience that land grant activism has continued despite Alianza's setbacks. Trujillo introduced a group of young activists who have obtained the skills necessary to continue the struggle. They included Robert Valdez, who writes a column for the Rio Grande Sun explaining the historical and cultural significance of place names in northern New Mexico; David Garcia, a sociologist who specializes in music; Ramoncita Martinez, whose father is county commissioner Felipe Martinez and is studying community and regional planning; and Lucia Sanchez, a cultural anthropologist who helps local businesses gain access to resources and is a commissioner of her acequia in Alcalde.

Benavides then went on to explain that heirs have long lobbied for a political investigation of the government's complicity in the loss of their community land grants. As a result, the New Mexico congressional delegation requested the General Accounting Office (GAO) conduct an investigation of the injustices that occurred during the federal government's adjudication of Spanish and Mexican land grants in New Mexico.

Unfortunately, the GAO 2004 report attempted to justify the government's actions rather than impartially examine them. As a result, Benavides is coordinating a staff of lawyers and researchers who are responding to the GAO report by telling the real story of what occurred between 1854 and 1904 during the investigations by the Office of the Surveyor General and the Court of Private Land Claims. This story includes, among other things, lack of due process, failure to comply with the mandate and spirit of the Treaty of Guadalupe Hidalgo, and failure to help communities protect their grants once they were confirmed,

The work is being funded by the New Mexico state legislature, Rio Arriba County, and New Mexico Legal Aid. According to Benavides, "Ten years from now the GAO report will hopefully be irrelevant."

Editorial: Indian Water Rights Adjudications Continue to Continue By Kay Matthews

A year ago I wrote an article for the Taos alternative newspaper Horsefly about the Indian water rights adjudication settlements that the state of New Mexico is currently negotiating with the federal government and the affected tribes and pueblos. As I stated in that article, the critical questions regarding these settlements, which involve huge amounts of money and thousands of acre feet of water, are where is the water coming from, how is it going to be used, and who is going to pay for it. I'm afraid not much progress has been made towards finding answers to these questions; in fact, the terms of the settlements seem to be more illusive than ever. Here's an update on what I know about the status of the adjudications and how they fit into the overall picture of how our water resources are being managed.

Aamodt Adjudication

The Aamodt adjudication settlement in the Pojoaque Basin, which has yet to be signed by the federal government, continues to generate considerable controversy because its implementation is contingent on the importation of water from other areas of the state. Many affected Pojoaque Basin residents believe it will lead to increased growth and development in the basin, mostly associated with pueblo economic development, which so far has been dependent on casinos and golf-courses. They also reject the idea of a water delivery system to non-pueblo residents that requires the importation of water and the continued role of Santa Fe County as a water broker. Recently, attorney Fred Waltz, who represents members of the Pojoaque Basin Water Alliance, a group opposed to the settlement as it now stands, withdrew as their attorney saying that he could no longer adequately represent them because of their "divergent views" (there is disagreement within the group over how to resolve their objections to the terms of the settlement).

The county's role in the Aamodt settlement is especially troubling. Not only is it the water broker for Top of the World Farm (TOW) water rights, located in northern Taos County, but has dramatically increased the number of water rights it's trying to transfer from the Middle Rio Grande Basin. These rights are being transferred to the Buckman Well Field, which supplies water to the city and county, and the Buckman Direct Diversion, which will access Rio Grande and San Juan/Chama project water, also for the city and county. The transferred water rights are both ground and surface water rights, including acequia rights, and will be used to offset the county's groundwater pumping and to possibly meet the required needs of the Aamodt settlement.

All of this is on paper, of course, and all the transfers have to be approved by the Office of the State Engineer (OSE), which is largely responsible for the direction of future water policy in the state, along with the Interstate Stream Commission (ISC). The ISC is responsible for the promulgation of the 16 regional water plans that have been drafted to try and manage water sustainably in the state's regional water basins. More on this later.

Unfortunately, intra- and inter-agency controversy and discord are abundant in both of these bureaucracies, and the county is right in the middle of it. There seems to be a revolving door among all three entities, of not only hydrologists and administrators but also attorneys who act as hired guns. Former employees become consultants and a cabal of water lawyers work on contract for all the agencies, often in areas where there is a conflict of interest. The OSE has long been criticized for contracting much of its work to outside lawyers instead of using in-house staff.

As I've discussed in previous issues of La Jicarita News, Santa Fe County seems unable to come up with a conjunctive management plan that ties development to water availability. It therefore functions as a water broker, both directly and in conjunction with developers like Gerald Peters who must purchase water rights from outside the region and then apply to transfer them to the county utility in order to underwrite developments. There seems to be little communication between the water utility department, headed by a former employee of the New Mexico Environment Department (the county hydrologist is a former employee of the OSE) and the county commissioners, particularly with regard to the transfer of water rights to the 19 county wells (see La Jicarita News, April 2007) that have been protested by hundreds of county well owners. When I've called the water utility department with questions concerning the wells and other water transfers I can't get beyond the county spokesman, who usually can't answer my questions and doesn't call back with the information I requested.

We need to remember that the federal court decision by Judge Edward Mechem in the Aamodt adjudication, most recently upheld in 2001, ordered that the pueblos are entitled to domestic water rights equal to the actual water they used between 1846, after the Mexican-American War when the area became part of the United States, and 1924, when the Pueblo Lands Act quieted title to all rights developed prior to that time. As Mechem quoted in his decision, "The effect of this Congressional act was to fix pueblo rights, that is, it terminated their right to develop further future water uses with aboriginal priority." If that decision had been the final court order, pueblo development activity would have been severely limited.

Abeyta Adjudication

The Taos Valley settlement may also be in trouble. While the parties to this settlement emphasized their desire to minimize effects on water users outside the Taos Valley, the settlement is contingent on acquiring uncontracted San Juan/Chama water, imported from the San Juan Basin. These 2,990 afy of water would go primarily go to Taos Pueblo (2,440), but 500 afy is slated for the Town of Taos and 50 afy for El Prado Water and Sanitation District. Now, it seems, the federal government is saying that some of that water should go to the pueblos in the Aamodt settlement to help meet their 2,500 afy for future growth and development.

There is also controversy over the Draft Taos Regional Water Plan and Public Welfare Statement that was released at the end of 2006. Many of the parties to the proposed Abeyta settlement criticized the plan, claiming that it would make it more difficult for the Town of Taos, El Prado Water and Sanitation District, and the mutual domestic water associations to acquire water rights from other parts of the Taos region for their future needs. The draft Public Welfare Statement includes a provision for a local advisory board or committee, comprised of a range of Taos area stakeholders, to review and make recommendations to the OSE regarding the public welfare implications of applications to transfer water out of its area of origin in the Taos region. Some of the parties to the Abeyta Settlement, who appear to favor the free marketing of water, objected to the creation of this local advisory board as an obstacle to the implementation of their settlement.

Members of the regional water planning committee that drafted the Public Welfare Statement met with the Abeyta parties on more than one occasion and made revisions to the Public Welfare Statement to address their concerns (see La Jicarita News, November 2006). However, some of the Abeyta parties still submitted comments to the ISC, which oversees the regional water plans, challenging the idea of a local advisory board. Several of these comments were drafted by the law firm of Stein and Brockmann, which specializes in municipal water law and is currently involved in other applications to transfer water from the Middle Rio Grande Basin to the Buckman wells. Jim Brockmann also represents Española businessman Richard Cook, who is challenging the San José de Hernandez Community Ditch's denial of his request to transfer acequia water rights on the ditch to a mutual domestic water association that will supply water to one of his subdivisions further north. This is the first legal challenge to the state statute approved in 2003 that gives acequia commissions the authority to approve or disapprove transfer applications from their ditches. The case is currently being heard in district court and La Jicarita News will report on the court's findings in the next issue.

The Public Welfare Statement committee is currently revising the draft Statement and preparing a response to the comments that were received, which will be part of the public record. The Taos Regional Water Plan is the last of the 16 statewide plans to be promulgated and is already behind schedule. Many community members who worked long and hard on the Plan's steering committee, representing a broad range of Taos County constituencies, believe that the plan's Public Welfare Statement adds an important layer of protection for Taos area water resources by providing a framework to help inform the State Engineer's determination whether potential water transfers are in the best interest of the public.

Navajo Nation Settlement

New Mexico's congressional delegation introduced federal legislation on April 19, 2007 to implement the Navajo/San Juan River Water Rights Settlement. This settlement, with an estimated cost of $800 million, would allocate 55% of the San Juan River water rights to the Navajo Nation. The state of New Mexico is taking the position that the settlement provides a fair allocation of water to the Navajos while protecting existing non-Indian water users, including San Juan/Chama project contractors. The Navajo Nation and the San Juan/Chama contractors share water from the Navajo Reservoir supply, and the Bureau of Reclamation claims that with the settlement all parties will continue to be able to satisfy their needs without shortage.

The settlement would provide 270,000 afy to the Navajo Indian Irrigation Project, begun 40 years but never completed, and several pipeline projects to provide potable water to Navajos who currently must haul their water.

But the $800 million price tag for these projects has many concerned that the federal government will never approve the settlement as written. There is controversy over whether the Department of the Interior has an obligation to complete the Navajo Indian Irrigation Project, and the Navajo Nation has stated that sometime in the future it may decide to reduce its irrigated acreage and transfer those water rights to other uses for economic or political reasons. That, of course, supports settlement opponents' allegations that the

Nation's primary motivation in the settlement is to market the water. If the settlement does not become final, the Navajos would assert a Winters Doctrine claim on the San Juan River. The Winters Doctrine declares that when Congress reserved land for Indian reservations it also reserved water, both present and future, to fulfill the purpose of the reservation. A Winters claim would also affect Navajo Reservoir contractors, including San Juan/Chama, but because all contractors have to share, a priority call would also affect the Navajo Irrigation Project.

Colorado Ute Indian Water Rights Settlement

There is already a Winters claim on the San Juan River, filed by the Ute Mountain Ute tribe in 2004.While the Colorado Ute Indian Final Water Rights Settlement Agreement was signed in 2000, the Ute Mountain Ute Tribe, 20 percent of which lies in New Mexico, has filed a Winters Doctrine claim for 7,300-9,300 afy of water in the San Juan River, in addition to their allocated rights as part of their settlement, which come from different sources. The tribe proposes to use the water for a coal fired electric generating plant or for other economic development purposes. This claim could affect the Navajo Nation settlement, as the Ute tribe has a senior priority date in the San Juan Basin.The claim is currently being heard in the Colorado Supreme Court.

Conclusion

We have to keep reminding ourselves that all these transfers and plans and discussion of future needs are all just paper. The San Juan/Chama water that the Aamodt and Abeyta settlements are fighting over may never come through the Azotea Tunnel if there's a drought in the San Juan Basin. A transfer of surface water from an acequia in the Middle Rio Grande Basin is supposed to mean that when someone stops irrigating their land, that unused water can be pumped at the Buckman Well Field north of Santa Fe without impairing anyone. But there may be very real depletion impacts on the Rio Grande and on Santa Fe County wells. In the recent New Mexico Supreme Court decision in the transfer of surface water rights in Valencia County to groundwater rights in a Placitas subdivision, the justices remanded the case back to district court to specifically determine if the pumping of groundwater in the Placitas subdivision will impair other water rights holders in the area. In the protest of another surface to groundwater application upstream, Isleta Pueblo claims that the transfer "is detrimental to the public welfare because the availability of flows for the benefit of downstream users is diminished." A water attorney involved in transfers to the Buckman wells believes that surface to groundwater transfers could impair existing surface water rights at the move-to location.

To settle all the Indian water rights claims and to meet the needs of urban populations this paper water will travel hundreds of miles from a river or stream to wells or other streams where we demand that the water be. It remains to be seen if the "real" or "wet" water will ever arrive.

ANNOUNCEMENTS

• Former and current Los Alamos National Laboratory (LANL) workers who have developed illnesses due to radiation exposure can file claims for compensation through the Energy Employee Occupational Illness Compensation Program at the Department of Labor. Call Española Resource Center at 505 747-6766 or toll free 866 272-3622 for an appointment. The office is located at 412 Paseo de Oñate, Suite D, Española, NM 87532. The e-mail address is espanola.center@rrohio.com. Claims can also be filed from this website: Michelle Jaquez-Ortiz at Representative Udall's office can be contacted for help. Her phone number is 505 984-8950.

• Quest Communications' lease with Pojoaque Pueblo will expire in October and the pueblo is not expected to renew it (the pueblo has said it will contract with Mescalero Apache Telecom). Quest therefore wants to erect five microwave towers in the Pojoaque area to continue its service. The company has already requested approval from Santa Fe County to install a 40-foot telecommunication tower with microwave dish on the corner of County Road 113 and SH 503 in Nambe. The County Road 115 Neighborhood Association is urging all residents of Nambe and Santa Fe County District 1 to contact their county commissioner Harry Montoya at 995-2761 or by e-mail, hmontoya@co.santa-fe.nm.us, to object to the placement of this tower. The association claims the tower will have a negative visual impact on the center of Nambe, will result in a decline in property values in the area, will contribute to clutter and commercialization of a residential neighborhood, may affect the health of nearby residents with electromagnetic emissions, may lead to the addition of more towers, may interfere with emergency and public safety radio service, and fails to conform to the spirit of local planning codes. There will be a public hearing held at the Old Santa Fe County Courthouse on the corner of Palace and Grant on June 21 at 4:00 p.m.

•The Southwest Chutney Tasting Room will host an open house on July 22 (from 11 a.m throughout the day) at its new location on the Historic Costilla Plaza, "gateway to the Valle Vidal." The kitchen, tasting room, and store will be opening the week before July 4th on Wednesdays through Sundays. Southwest Chutney is a processor of fine local chutneys, including Taos Christmas (made with red and green chile), Juniper Red, Peachy Green, Sweet Onion, and Calabacita Red. It is a wholesale business as well and sells its locally produced foods at the Taos Farmer's Market and the Santa Fe Farmer's Market. The store on the Costilla Plaza will also carry other upper Rio Grande products such as body care products, garlic oil, and condiments. The company will be making fresh fruit sorbets, cappuccinos, and iced teas. The store should be a welcome addition to a plaza that has seen a lot of businesses come and go. For more information you can contact Lisa Fox at 505 586-0064.

Compensation for Radiation Exposure at LANL: Two Stories

By Kay Matthews and Mark Schiller

Introduction

The United States government has a troubling history of putting its citizens in harm's way and then refusing to accept responsibility for the consequences. You only need to look at our returning war veterans from Vietnam and the two Gulf wars who have been denied compensation or proper medical care for disorders that range from exposure to Agent Orange and depleted uranium to post traumatic stress disorder. The government and corporate sponsored nuclear defense industry has an equally dismal record. The following stories reveal the government's bureaucratic attempts to avoid compensating workers who have been exposed to radiation poisoning at Los Alamos National Laboratory.

Gilbert Aguilar

Although people who grew up in the traditional communities of el norte after World War II retained strong ties to the land, very few were able to earn a viable living as farmers and ranchers. As a result, many of them were forced to seek employment in urban areas throughout the west. For those who stayed the opportunities were limited. Some found employment in the Forest Service or BLM. Some worked for the schools. Others found seasonal jobs in the tourist industry.

Northern New Mexico's biggest employer in the post war era, however, has been Los Alamos National Laboratory (LANL). The lab and its many subcontractors and subsidiaries pump enormous amounts of money into the local economy. Many current and former employees are now finding that those jobs came with "hidden" costs. Our neighbor, Gilbert Aguilar, is one of them.

Gilbert worked at the lab for the Zia Company, a LANL subcontractor, from September of 1975 to June of 1977. During that period he did maintenance, constructed roads, and worked in several "technical areas" doing "decontamination." That decontamination work consisted of digging up radioactively contaminated soil, buried pipes, cement, and other construction materials, including asbestos, from facilities that had been used in the construction of nuclear weapons and were subsequently demolished. The crews he worked with then loaded these contaminated materials on to trucks and conveyed them to a repository on lab property known as the "hot dump." According to Gilbert, some of the areas he worked in were so contaminated that employees were only allowed to work for fifteen minutes per hour. He says the "protective clothing" he was given to shield him from contamination was nothing more than a cloth suit, booties, and a paper mask that covered his nose and mouth. He further notes that on at least one occasion a monitor he had to pass through after doing this work detected a dangerous level of exposure and he had to shower three times before being able to "safely" pass through the monitor. He also says that he was told by his supervisors that if he refused to work in these contaminated areas he would be fired.

Gilbert left this job as the result of a work related accident that ruptured two discs in his back and broke his wrist. He was compensated for and eventually recovered from that accident, but in October of 2005 he was diagnosed with a "clear cell carcinoma" that resulted in the removal of one of his kidneys. After completing a thorough medical history, his doctor determined that: "It is my understanding that he [Gilbert] did work at Los Alamos and was exposed to some level of radiation during his employment there. He has no other risk factors regarding this malignancy with the exception of having radiation exposure." Based upon the doctor's evaluation, Gilbert decided to seek compensation through the Energy Employees Occupational Illness Compensation Program (EEOICP).

This program, created by Congressional Act in 2000, provides "a lump sum payment of $150,000 and medical benefits as compensation to employees suffering from designated illnesses incurred as a result of their exposure to radiation, beryllium, or silica while in performance of duty for the Department of Energy . . . ." The act specifically mandates the U.S. Department of Labor to administer a program "for claims by current and former employees of nuclear weapons production facilities . . . who seek compensation for cancers caused by radiation exposures sustained in the performance of duty." You'd think, given Gilbert's work and medical histories, he'd obviously qualify for this program. Guess again.

Employees who worked at the lab between 1943 and 1975 and developed cancer and other exposure related diseases were granted "Special Exposure Cohort" (SEC) status, which entitled them to receive compensation benefits without proving how much radiation they were exposed to. Workers who developed cancers but did not work at least 250 days prior to December 1975, however, have had to submit to a procedure that, in theory, "reconstructs" their radiation exposure. The 1975 cutoff was predicated upon the presumption that subsequent to 1975 the lab kept accurate records of contamination levels that could provide enough reliable information to determine, in the government's words, "whether the employee's cancer was at least as likely as not related to employment at the facilities covered by EEOICP." However, Dr. Maureen Merritt, a retired physician who worked for the Public Health Service and now does advocacy for former lab employees seeking compensation, asserts that the 1975 cutoff was arbitrary and that lab contamination and exposure records remained "sketchy" until the 1990s.

So, in other words, based on questionable information about the level of contamination at LANL during the period of Gilbert's employment, and a "guesstimate" of the areas in which he worked, the Department of Labor determined what the "odds" of Gilbert having contracted his cancer from work related exposure were. In order to qualify for compensation that estimate must be fifty percent, or a one in two probability. In Gilbert's case, this absurd procedure, which was detailed in a twelve-page document that even the lawyers Gilbert consulted found incomprehensible (e.g., it cited among other determining factors the "neutron to photon ratios . . . formulated for various work conditions at LANL"), determined that the probability of his exposure causing his cancer was 16.32 %, or only one in six. His claim, therefore, was denied. The whole process sounds like a "crapshoot" at a bookie joint until you remind yourself that peoples' lives hang in the balance.

Dr. Merritt told La Jicarita that Gilbert's case is "typical" of many she has observed. She believes that only 10-15% of all post-1975 LANL claims have been approved by the Department of Labor, despite that department's assertion that the procedure is weighted heavily in favor of the claimants. She also contends that LANL compares unfavorably with other federal nuclear facilities where, she believes, the claim approval rate is closer to 25%, a level, she believes, is still "woefully low." She also told us that the models for determining the likelihood of exposure-induced illness are predicated on data drawn from the victims of the bombings at Hiroshima and Nagasaki. She believes that this data is not only outdated but does not correlate well with the exposures at LANL because bombings were a one time event involving exposure to only one radioactive element whereas the LANL incidents involved continuous exposure to the full spectrum of radioactive elements. Speaking specifically about some of the information we provided regarding Gilbert's case, Dr. Merritt told us that several of the areas his "Dose Reconstruction Report" concedes Gilbert worked in, were "particularly hot [contaminated by nuclear radiation]" and that technical area 54 remains a dangerously contaminated area to this day.

In November of 2006 Gilbert filed an objection to the "recommended decision," which entitled him to appeal. However, he felt that without legal and technical assistance it would be pointless to pursue. Gilbert has thus far been unable to obtain qualified assistance and is hoping that an appropriation to establish an advocacy program for lab employees sponsored by New Mexico legislator Ben Lujan, himself a former LANL employee, will eventually provide necessary assistance. Dr. Merritt told La Jicarita that the appropriation will become available this July, and advocates hope to open an office before the end of 2007. She said she believes that one of the first items on that office's agenda should be lobbying the federal government to extend Special Exposure Cohort status to employees who developed exposure related diseases after 1975.

In the meantime Gilbert is frustrated by a government that refuses to take responsibility for its actions. "Money can't compensate you for loss of your health," he told us, "but the government acts as if it just doesn't care."

Sandy Simons

Sandy Simons is 85 years old and lives in the foothills of the Rocky Mountains outside of Denver, Colorado. He was drafted into the U.S. Army at the age of 21 during World War II and because of his training as a physical metallurgist was assigned in 1944 to the Special Engineering Detachment (SED) that was part of the Manhattan Project at Los Alamos National Laboratory (LANL). That, of course, is where the United States government assembled a team to build the atomic bombs dropped on Hiroshima and Nagasaki at the end of the war.

According to Simons, "Without the work we [the SED] did, there would have been no bomb. We were responsible for the physical realities of the bomb." Simons was responsible for developing special containers for plutonium pits to prevent radiation leakage, but he handled the plutonium "all the time. While we knew the pits were dangerous we didn't have the tools then to determine how much radiation we were being exposed to. Geiger counters don't count alpha particles emitted from plutonium. I had to design all my own techniques to protect myself from radiation." He also told us that he kept the contained plutonium pits in his refrigerator.

Simons worked at LANL as a member of the Army for 18 months. He was then decommissioned and remained on contract there for another four months as a civilian before the war was over. He moved to Colorado, and in 1976 developed prostate cancer, and in 2001 he was diagnosed with bladder cancer. He recovered from both illnesses. After a friend of his daughter, who lives in New Mexico, told him about the compensation program for exposed workers, Simons applied in December of 2002 for the two types of cancer he has survived. The application at that time was submitted to the Department of Energy (DOE).

His application was denied in 2004. The DOE only considered his exposure during the four months of his civilian employment and ignored his exposure during his tenure in the Army, because, it claimed, Army employees were not covered under EEOICP.

Simons appealed this decision, and in June of 2007 the Department of Labor, which now administers the EEOICP, upheld the original decision, stating that "it has been determined that a claimant seeking benefits under EEOICP cannot obtain such benefits based upon service in the military. Therefore, your verified employment at LANL from 8/25/44 to 3/10/46 is not covered employment under the EEOICP." Simon's civilian employment in 1946 was not long enough to quality for the program as well. The DOL also noted that prostate cancer is not among the 22 types of cancer covered under EEOICP, and that his exposure under the four months of his civilian employment was not sufficient to have caused his bladder cancer. Simons is obviously caught up in a Catch-22 situation and should be given Special Exposure Cohort status because of his military service at LANL.

Simons is not one to give up easily, however, and will no doubt continue to pursue a claim. As he told La Jicarita News, "I'm 85 going on 40."