La Jicarita News - Community Advocacy for Northern New Mexico

Nuclear workers who have been made ill by exposure to radiation and toxic chemicals in their workplaces, along with their supporters and advocates, rallied in five locations throughout the country for reform of the Energy Employees Occupational Illness Compensation Act of 2001 (EEOICPA). Jerry Leyba, director of the Los Alamos Project on Worker Safety (LAPOW), hosted the June 25th rally in the parking lot of the Española office of the Department of Labor, which administers the compensation program. About 100 people listened to a series of speakers discuss the inequities of EEOICPA claims process. (See article on page 7 for a related story about the claims process.)

Nuclear workers advocate Dr. Maureen Merritt told the crowd, "We are asking that our Representatives and Senators, claimants, families, and friends unite to demand reform of the EEOICPA Act. In the last seven years it has become clear that thousands of valid claims for compensation have been flat out denied or delayed endlessly by intentional acts of the federal bureaucrats tasked with administering the program fairly and equitably. This must change."

Another nuclear workers' advocate, Dr. Ken Silver, formerly affiliated with the University of New Mexico and now teaching in Tennessee, urged participants to GITF and SITF, "get in their face and stay in their face." While Dr. Silver felt that progress had been made over the last few years, he told the participants they must continue to hold the politicians and bureaucrats who administer the program accountable for its short comings.

Former Los Alamos National Laboratory worker Ben Ortiz recounted that in 1972 when he became ill he was told he was "imagining" he was sick and that it was "all in his head."

Rally organizers also circulated a petition asking Congress for fourteen specific reforms of the EEOICPA including: Special Exposure Cohort Status (blanket compensation for all sick workers) for all facilities whose exposure records are incomplete; cost of living increases for compensation payments; and free medical diagnostic testing.

Moonlight singers from Santa Clara Pueblo

Workers deep commitment to the land and the community was evidenced by the songs and chants of the Santa Clara Pueblo Moonlight Singers and the hand to hand circle paricipants formed to close the rally.

Office of Nuclear Workers' Advocacy Strives to Help Sick Workers

By Mark Schiller

In the September 2007 issue of La Jicarita News (LJN) I wrote an article noting that New Mexico was the first state in the country to open an Office of Nuclear Workers' Advocacy (ONWA). This office was created to help workers who have become ill as a result of exposure to radiation and toxic chemicals while employed at Los Alamos National Laboratory and other nuclear facilities throughout the state get the federal benefits to which they are entitled. I have also written extensively about the difficulties inherent in negotiating the claims process outlined in the Energy Employees Occupational Illness Compensation Program Act (EEOICPA) of 2001, which in many cases places a nearly impossible burden of proof upon claimants who are also struggling with illness. Statistically, New Mexico nuclear workers have one of the lowest EEOICPA compensation rates in the country, so there is a clear need for this type of advocacy.

LJN recently spoke with the director of the program, Loretta Valerio, about what her office has accomplished in the year that it's been open and what she envisions for the future. Valerio explained that initially she was the only office staff person serving about eighty clients. That list has grown to over two hundred, and the office now includes an administrative assistant. While Valerio has met with many workers groups and gets referrals from the Department of Labor Resource Center and Johns Hopkins University, which does medical screening for the program, she believes there are still hundreds of claimants who need the services of her office. She estimates that her client list increases by about twelve each month.

Although the ONWA deals with a wide variety of problems, the vast majority of its clients are workers whose initial claim has been denied. "ONWA's main task," Valerio said, "is to find what's missing in the claimants' applications so that they can be accepted." This most often includes tracking down medical evidence, radiation and toxic chemical exposure records, and employment verifications, as well as giving referrals to certified medical providers for impairment evaluations.

ONWA also prepares claimants for the appeals process and provides support during the actual appeal. Valerio noted that all three cases she helped prepare for appeal have been remanded for reconsideration. Moreover, thirty-five of the cases that ONWA has been associated with have been awarded benefits.

While the legislation that created ONWA was specifically for Los Alamos National Laboratory, Sandia

National Laboratory, and Waste Isolation Pilot Project employees, Valerio told us that the office has also helped uranium miners, millers, and transportation workers seek compensation under both EEOICPA and the Radiation Exposure Compensation Act (RECA).

As for the future, Valerio explained that she has spoken with a number of state legislators and is hoping the legislature will consider increasing the allocation for ONWA. Right now the entire budget is only $125,000. She believes that ONWA statistics demonstrate there is a need for at least two more case workers. She told LJN that while the government has made attempts to streamline the claims process, most claimants still find it overwhelming and need help. She is also optimistic that Special Exposure Cohort Status (already granted to claimants who worked at LANL between 1943-1975) will be granted to contract employees who worked at LANL between 1976-2005. That would eliminate one of the most cumbersome aspects of the claims process, dose reconstruction.

"Our main concern," she concluded, "is that all New Mexico nuclear workers get the medical care they need and the compensation to which they are entitled."

Readers who are interested in contacting the Office of Nuclear Workers' Advocacy can reach Valerio at 505-827-1636 or loretta.valerio@state.nm.us.

River Restoration Along the Banks of the Rio de las Trampas

By Kay Matthews

Steve Carson, in his cowboy hat and hip-high gaiters, is the river restoration man of choice these days. Through a cost share program with Taos Soil and Water Conservation District, he's been working on streamside restoration programs along the Rio de las Trampas this summer, including ours, in El Valle. Washed out years ago in a summer flood, the once gentle banks of our streamside meadow now drop precipitously down to the river. Carson, doing business as Rangeland Hands, built what is called a post vane structure to deflect water to the opposite bank, widen the channel, and induce meandering.

Rangeland Hands began as a business in 2002 after Carson was forced to shut down his previous business, Carson Remodeling and Design, because of an extended illness. As he told me his story, the emotion was evident in his voice. After years of struggling to find out what was wrong with him, he finally got a diagnosis: Post Traumatic Stress Disorder from the war in Vietnam. Finally getting the treatment he needed he spent a lot of time trying to figure out what he wanted to do with his life, and sent up a prayer for some kind of sign.

He got that sign at a Quemado workshop sponsored by the Quivira Coalition, when Executive Director Courtney White asked him if he'd be interested in being trained in watershed restoration. Carson immediately recognized that this kind of work would marry his connection to the land with his experience in design and construction, and he immediately began working with the group on various streamside restoration projects throughout the state. At first he handled workshop logistics and then began training with specialist Bill Zeedyk. Rangeland Hands now offers a variety of services: riparian and channel restoration; solutions for irrigation diversions; low maintenance dirt road systems; permanent storm water protection plans; fishery habitat development; and project management/logistical coordination.

The photos below show the progression of the project on our property. Carson and his co-worker Henry MacDonald from Dixon first installed a boom, in front of straw bales, to catch any pollutants that might be released from the backhoe positioned upstream in the river. (Peter Vigil of Taos Soil and Water handled getting the requisite certification from the New Mexico Environment Department under the Clean Water Act and a permit from the Army Corps of Engineers.) Carson then positioned the backhoe so he could dig out a trench on the eroded side of the river where the post vanes would be placed. While MacDonald held the cedar posts in place, Carson used the weight of the backhoe bucket to pound the posts into the river bottom. He then used strategically gathered river rock to infill the trench and secure the posts in place. Two post vane structures of nine posts each, twelve inches apart, were positioned below the eroded bank, protruding from the streambank into the oncoming current at an approximate 30% angle. Each structure was then cut off at a 15% angle, with the lowest post at the river's edge about a half foot above the channel. The theory behind the post vanes is that they will deflect the river water towards the opposite bank, causing it to erode, collapse, and recede. As the bank recedes, the channel widens, and a pool forms at the base of the bank. The bank resists a certain amount of water, however, and this flow rebounds towards mid-channel, gradually crossing over onto the other bank further downstream. Eventually, sediment is deposited adjacent to the post vane structures. Materials also erode from the concave, eroded streambank and begin to fill in the bank next to the post vane structure. Vegetation can then get a foothold. On our property, Carson planted narrowleaf cottonwood poles along the eroded bank to get things started.

The eroded river bank

Steve Carson, above, at the river bank

Henry MacDonald, left, installing the boom

MacDonald setting a post in place while Carson uses the backhoe bucket to pound it into the river bottom

The pole vanes in place at the edge of the river and cut off to proper height

Rangeland Hands has completed four projects in the El Valle area, three on the Rio de las Trampas and one on the Ojitos, which involved another restoration method called wicker weirs. These are small dams across a creek built by driving sharpened stakes or pickets into the channel and then weaving saplings, tree limbs, or willow cuttings between the stakes perpendicular to the flow. They are designed to control streambed elevation, channel slope, and pool depth while enabling free passage of water.

Peter Vigil has been happy with the results of these natural methods being used in river restoration rather than the traditional gabion methods (wire baskets filled with rock). While the cost share program through Taos Soil and Water has been offered to the public at 85% to 15% - agency to individual cost - in the future the cost share will be determined by what the conservancy district is able to afford. Applications can be made at any time to the district office in Taos. For more information call 575 751-0584.

The district is also the fiscal sponsor for a large restoration project on Comanche Creek in the Valle Vidal, coordinated by the Quivira Coalition under a EPA 319 grant. Restoration specialist Zeedyk will lead a tour of the project on Sunday, July 20. If you would like to attend, you can register on the Quivira Coalition website: http://www.quiviracoalition.org/Workshops___Events/.

ANNOUNCEMENTS

• Senators Pete Domenici and Jeff Bingaman have introduced legislation to settle the Navajo Nation's water rights claim in the San Juan Basin. On May 7 the bill was approved by the Senate Energy and Natural Resource Committee, which Bingaman chairs and on which Domenici is the ranking Republican. The settlement has a $900 million price tag to fund the Navajo-Gallup Water Supply Project, a pipeline to provide water to Navajo communities and the city of Gallup, and the Navajo Irrigation Project. The Bush administration has previously balked at the cost, although it has spent almost $2.5 billion to settle other water rights claims in the West. Domenici particularly wants to see this legislation passed by the end of the year when he leaves office.

•A new organization called Valley Unity has been formed in the Pojoaque Valley to educate residents about water issues in the valley, particularly with regard to the Aamodt adjudication, which calls for a regional water and waste-water system.The group also hopes to develop better communication with Santa Fe County regarding county plans that will affect the area. Meetings are scheduled for the fourth Thursday of the month at the Nuestra Señora de Guadalupe Church in Pojoaque. At the June meeting the group met with Carl Dickens, president of La Cienega Valley Association, and Darcy Bushnell, an ombudsman and program director of the Joe M. Stell Water Ombudsman Program, which operates out of the University of New Mexico School of Law in Albuquerque. Dickens offered organizational strategies that could make Valley Unity a force in community affairs, while Bushnell said her office would be available to help residents understand the legal documents that are being sent out to water rights owners by the Office of the State Engineer in the adjudication process. For more information about Valley Unity call 505 455-3118 or visit www.valleyunity.org.

• The Final Site-Wide Environmental Impact for Continued Operation of Los Alamos National Laboratory was released in May. This four-volume document contains the rationale for choosing the Preferred Expanded Operations Alternative, which will increase plutonium pit production, the triggers for nuclear bombs, from 20 to 80 pits annually. This decision was made despite overwhelming public opposition to increased pit production (letters and oral testimony addressing the proposed alternative of the Draft EIS fill one of the volumes included in this Final SWEIS), and despite the as yet to be made decision in the Complex Transformation Supplemental Programmatic EIS as to whether LANL will be the site of a consolidated plutonium center that will include construction of the Chemistry and Metallurgy Research Replacement Nuclear Facility. Therefore, the Site-Wide EIS will be pertinent to LANL operations only over the next five years. This Final SWEIS is available at public libraries and on the website: http://www.doeal.gov/laso/NEPADocuments.aspx.

New Edition of "Lands Grants and Lawsuits in Northern New Mexico" Is Now Available

The Center for Land Grant Studies has issued a new edition of Malcolm Ebright's seminal book, Land Grants and Lawsuits in Northern New Mexico, that is now available in local bookstores and at www. southwestbooks.org. Ebright's book is a ground-breaking history of New Mexico's land grants from their antecedents in Spain and Mexico down to present day land and water lawsuits. He narrates specific cases involving fraud, forgery, and injustice, as well as courageous acts by land grant communities. Land Grants and Lawsuits in Northern New Mexico presents a comprehensive and clear account of clashing legal systems in eleven essays, with a new introduction to this third edition, which we have printed in its entirety below.

INTRODUCTION TO THIRD EDITION

Since this book was first published in 1994, several new episodes have been added to the sagas of land (and water) loss suffered by Hispanos and Indians as a result of the 1846 American conquest of New Mexico. When Land Grants and Lawsuits in Northern New Mexico was first published, the Colorado lawsuit of Lobato v. Taylor was still wending its way through the state courts on a tortuous path that would lead to an astonishing victory in 2002 for land grant claimants in the San Luis Valley. Those heirs or settlers on the Sangre de Cristo land grant in Southern Colorado (originally New Mexico) found their rights to use what became the common lands - and particularly the mountainous tract known as La Sierra - upheld in a stunning, ground-breaking decision by the Colorado Supreme Court. This chapter in the land grant story was characterized by a long and arduous community and legal struggle, culminating in victory. To date, access to La Sierra for wood-gathering has been provided to more than 500 individuals who can properly trace their title through maps and deeds issued in the mid to late 1800s.

The second development in the battle to regain lost lands is the ten million dollar compensation paid by the federal government of claims by Hispanic homesteaders on the Pajarito Plateau for the unconstitutional taking of their property in 1942. These settlers were summarily evicted from their patented homesteads to make way for the Manhattan Project at what became Los Alamos, New Mexico. While these extended families of homesteaders were not organized as a community land grant, they worked their land communally in a manner similar to other northern New Mexico communities such as Gallina, Canjilón, and Cebolla, whose settlers also received patented homesteads, near the San Joaquín and the Tierra Amarilla grants.

When the U.S. government decided to locate the top-secret Manhattan Project at Los Alamos and acquire the land through eminent domain, it negotiated with large property owners such as the Los Alamos Ranch School prior to the taking, reaching an agreed valuation of their land and improvements. In contrast, the homesteaders were evicted before condemnation proceedings were even filed against them. The ten million dollar settlement, of which eight million went to the homesteader heirs, implicitly recognized the due process violations in the eviction of the homesteaders, including failure to provide them with sufficient notice of the proceedings and the inadequacy of the compensation awarded them. This major recognition of the U.S. government's failure to fairly compensate the homesteaders on the Pajarito Plateau for the taking of their property should be seen as another victory for land grant claimants similar to the Colorado Supreme Court decision in the Taylor Ranch case.

The victory of the Pajarito Plateau homesteaders has received little publicity, and histories of Los Alamos often fail to mention this shameful treatment and unconstitutional taking of property of a group of U.S. citizens. At the time, the taking of their property was justified as a wartime necessity, as were the California Japanese-American internment camps of the same era. Histories of that time need to be rewritten to recognize this belated compensation of the Pajarito Plateau homesteaders' heirs. None of the original homesteaders were able to continue their subsistence lifestyle tied to the land they owned, and some died shortly after they were evicted, victims of a rude uprooting from their homelands by the U.S. government.

The third new and less encouraging development was the publication of the long awaited 2004 GAO (General Accounting Office) Report on land grant claims under the Treaty of Guadalupe Hidalgo. Land grant claimants had hoped that the report would be a thorough unbiased study of the claims of unfair adjudication by the Surveyor General of New Mexico and the Court of Private Land Claims in their adjudication of land grant claims in the Southwest. It was not. Instead, the GAO report was a legal brief on behalf of the U.S. government that utterly failed to engage the claims of injustice cited by land grant heirs and claimants. Like ships passing in the night, the report barely acknowledged the evidence of injustice cited in Land Grants and Lawsuits in Northern New Mexico, particularly the lack of due process of law under the procedure followed by the Surveyor General. Rather than an independent study, the GAO report was a stinging slap in the face of land grant claimants and a whitewash of government failures to meet minimum standards of fairness in the adjudication of Spanish and Mexican land grants.

The fourth development since the first publication of this book was the 1998 observance of the 150th anniversary of the signing of the Treaty of Guadalupe Hidalgo in 1848, and the annual observances since then on or about February 2 of each year. Since most agree that the promises contained in the Guadalupe Hidalgo Treaty have not been kept, this occasion has been called an observance of the anniversary rather than a celebration. A renewed interest in land grant history shown during the presentations of papers and panel discussions has continued down to the present and has led to certain legislative changes supporting land grant heirs and acequia parciantes, expanding the powers of land grants and community acequias. The formation of the Interim Land Grant Committee on the state level is a positive development, giving land grant heirs a voice in the New Mexico State Legislature.

These developments indicate that the stories of land loss and displacement resulting from the U.S. invasion of the Southwest need to be told over and over again whether or not the U.S. government or the state government ever provides any redress or even admits responsibility for the injustice of land grant adjudication. The potential effect of the GAO report and other attempts to rewrite history is to kill the hopes of those who remember these stories of loss. But hope can only be killed if we forget this history. Instead, this rich and complicated history needs to be expanded, not constricted. Rural communities in northern New Mexico that have survived their losses of land are now threatened with loss of their water rights. The government is telling them their irrigation water rights might need to be transferred to supply new growth in urban areas. It will be easier to accomplish such a taking of water if the history of how the land was taken is justified, rewritten, or erased. The lives of our rural land-based communities depend on keeping these stories - their history - alive.

May we keep telling these true stories for many generations to come so that our grandchildren can remember them as they strive to keep their culture alive and maintain for the land the love, respect, and spiritual power their ancestors felt in their bones.

West Rim Domestic Water Users Association Public Hearing

By Kay Matthews

I've covered - and participated in - many contentious meetings in my time, and the West Rim Domestic Water Users Association (WRDWUA) public hearing on July 10 ranks right up there at the top of the list. Unfortunately, the anger and contention displayed by the residents of the Carson and Tres Orejas areas on Taos mesa was due to ignorance, misinformation, and a poorly structured meeting by the board of the water association.

The issue at hand is the application by the WRDWUA to transfer domestic water from Rio Grande Spring (also referred to as the Klauer Spring) to its well on the west rim of Taos Canyon to serve its 109 association members. The initial application, filed in 2005, was for 26 acre feet per year (afy), which was protested by area ranchers - the Cerro San Cristobal Ranch and Half Moon Cattle Ranch. These parties went to mediation, and at the beginning of 2008 a settlement was reached. The transfer application will now be heard by the Water Rights Division of the Office of the State Engineer (OSE). While La Jicarita News reported on some of the terms of that settlement, including the fact that the initial 26 afy amount will be dramatically reduced (the OSE offered 3.8 afy), members of the association and other area residents who use the spring for not only drinking water but for livestock and other household uses have come to believe that if the water transfer is approved the OSE will close down Rio Grande Spring.

This is not necessarily the case, but before this information was imparted to those attending the meeting, the floor was opened to public input and the emotion was palpable. The spring is the sole source of water for most of the areas residents, who have chosen to live in these "off the grid" communities and who don't want to have to join a water association to have access to water. For many, this was expressed as both a financial issue - they couldn't afford to join the WRDWUA (a lifetime membership cost $150) - and a philosophical one, that water is a right, not a privilege one has to pay for.

Ironically, the threat of losing the spring was the motivation behind the formation of WRDWUA in the first place: years ago the Bureau of Land Management temporarily closed the spring because of fecal coliform contamination (Taos BLM director Sam DesGeorges attended the meeting and assured everyone his agency currently has no intention of closing the spring). The water association came together and applied for grants to put in a well and pump house, and in 2005 made the transfer application to the OSE. The association's goal was to eventually transfer approximately 9 afy to three or four wells that would provide all the water needs of the communities scattered on the west side of the Rio Grande gorge. According to Dawn Kohorst, manager of the WRDWUA, the OSE Water Rights Division advised the association to apply for 26 afy, the entire amount of water declared for the spring (the water rights associated with the spring are pre-1907 rights that can be declared through continuous beneficial use).

At the meeting, the attorney for the WRDWUA Steven Curtis, who is with the Albuquerque law firm of Charles Dumars, told the crowd that the OSE is now trying to determine how many acre feet to allow in the transfer by calculating membership use per day. The remainder of the 26 afy would remain at the spring for public use. He explained that the issue of shutting down the spring was initially raised by the OSE during the settlement negotiations because of concerns about "double dipping," or taking water that would deplete the flow of the Rio Grande. In its initial proposal to the WRDWUA the OSE wanted to limit the transfer to 3.8 afy and close the spring, but the association rejected this. Curtis has proposed that there be an initial transfer of 4.8 afy, with an eventual cap of 13.02 afy to accommodate future members of the water association.

Blanca Sturgeon, of the Rural Communities Assistance Corporation, also attended the meeting and warned the crowd that there is still a danger of the state closing the spring because of contamination. Under the Safe Drinking Water Act, if more than 25 people use a water source, that source must be regulated and could be shut down if necessary, by the state. She encouraged everyone to work together to move forward with the transfer of water to the well, which would provide clean drinking water for the communities, and keep the spring for other household uses.

While other possible scenarios were raised at the meeting - purchasing water rights from another source or taking measures to insure that the spring is not contaminated - Sturgeon encouraged everyone to let the board move forward with the transfer application. The well is functioning now under a temporary permit, which allows use of 3 afy, but that permit will expire once a transfer is made. Kohorst is concerned that if the association drops the transfer request, its permit will be withdrawn and the organization will have to liquidate its assets and the communities will be back to where they started. "Water rights don't grow on trees," she said. The OSE is not going to respond to the water association's proposal until later in the summer. In the meantime, she hopes that the board can continue the dialog with the residents to find a way to provide a clean and safe water supply for everyone.