A community advocacy newspaper for northern New Mexico
Box 6 El Valle Route, Chamisal, NM 87521
Acequias Confront Forest Service Over Access Rights By Mark Schiller and Kay Matthews
Senators Mark Udall and Tom Udall Sponsor Bill to Reform EEOICPA By Mark Schiller
Embudo Valley Environmental Monitoring Group Sponsors Listening Session with New Mexico Environment Department By Kay Matthews
Editorial: Disaster Capitalism, Full Circle By Kay Matthews
By Mark Schiller and Kay Matthews
Editor's Note: Just after we wrote this article we learned that John Miera will no longer be the Camino Real District Ranger as of May 1 and will be working out of the Carson Supervisor's Office in the Special Projects Division. We don't know whether this position change was already in the works when he conducted the meeting described below, but we hope the Forest Service will not further delay the acequia projects that are currently in progress.
Camino Real District Ranger John Miera always introduces himself at community meetings as an acequia parciante and land grant heir, but after a three and a half hour meeting with local acequias on a cold, windy day at the Peñasco Community Center, parciantes came away with the impression that he's just another government bureaucrat, plain and simple.
The meeting was called by the Forest Service to address the acequia rehabilitation projects of five area acequias whose projects are located on national forest land (all former land grants). While most of the parciantes who attended the meeting wanted to focus on their concerns regarding the slowdown of their rehabilitation projects, which is jeopardizing their funding, Miera insisted that the Forest Service proceed with excruciatingly long presentations detailing the regulatory process it contends the acequias must undergo.
Miera is taking the position that acequia projects that require more work than he deems simple "maintenance" are subject to analysis under the National Environmental Policy Act (NEPA) and have to obtain a special use permit from the Forest Service. Just what constitutes "maintenance" is open to interpretation, of course. Miera asserts that it only includes removal of silt, reduction of erosion, maintaining water flows, and the replacement of a compuerta or presa that exactly replicates the structure being replaced. He claims, for example, that replacing a presa made of logs and hay bales with gabions and cement, even in the same location as the previous dam, does not fall within regular maintenance. Acequias, on the other hand, assert that work that is "essential" to the maintenance of their ditches and remains within their easements should not be subject to Forest Service regulation.
Many interesting and rudimentary flumes and diversions fill the hundreds of acequias that will someday need to be replaced
The regulatory process includes five steps: 1) submitting a SF 299 permit; 2) determining the "cost recovery," or administrative fees that the Forest Service charges to obtain necessary permits and monitor special uses for compliance; 3) conducting a NEPA analysis; 4) obtaining a special use permit; and 5) implementing and monitoring the project. The Forest Service is also insisting that all acequia projects submit a SF 299 application so that the agency, not the acequia, will determine whether it is only a "maintenance" project or "beyond normal maintenance."
"Beyond normal maintenance" is the terminology used in a 2001 letter from then Regional Forester Eleanor Towns to David Benavides, attorney with New Mexico Legal Aid. Benavides had asked for clarification of Forest Service policy regarding acequia rehabilitation on federal lands for the Nacimiento Community Ditch Association on the Santa Fe National Forest. In her letter to Benavides, Townes stated that a special-use authorization is required for activities "beyond normal maintenance or minor improvements . . . or outside the right-of-way; or which involve significant changes in location or alignment, significant increases in the area occupied, construction of new access roads, and enlargements and extensions that increase the capacity of the system."
Benavides believes that this policy statement "should have ended Forest Service badgering of parciantes to get special use permits and allow them to do what they've always done." But Miera, who has a history of interfering with acequia maintenance, seems to think Towns' policy is subject to his interpretation. The commissioners of one of the five acequia projects chose not to attend the meeting because they assert that the Forest Service does not have authority over acequia easements and they intend to proceed with their project.
In another case in 2002 involving Abiquiu parciante Virgil Trujillo, who attempted to rehabilitate an acequia that had actually been damaged due to Forest Service negligence, Miera, then the Española district ranger, cited Trujillo, telling him he needed a special use permit to not only take heavy equipment across Forest Service land but to even use the ditch. Trujillo responded: "You better cite me right now because I'm putting water in this ditch this afternoon, and you better be prepared to cite everyone in northern New Mexico if you think you have the authority to stop people from exercising their pre-existing water rights."
Despite the fact that acequia easements pre-date Forest Service tenure, Miera still thinks he has authority to regulate work within these easements. At the meeting in Peñasco, Miera did bring up the 1866 Congressional Act that acknowledges the validity of existing easements without the necessity of a permit or other authorization. The Act states: "Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have bested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes of aforesaid is hereby acknowledged and confirmed."
Miera noted that this Act provides an alternative way for acequias to establish their pre-existing rights, but warned that the process requires a claim to the Regional Office of the Forest Service, which necessitates copious documentation and places the burden of proof on the acequias, rather than the Forest Service. He also cited the Federal Land Policy and Management Act (FLPMA) of 1976 that he claimed gives the Forest Service the right to "reasonably regulate" water rights and accompanying rights of way. At the meeting Benavides questioned whether FLPMA also recognized pre-existing water rights easements, which it does in the section regarding rights of way: "Nothing in this subsection [of the Act] shall be construed as effecting any grants made by any previous Act to the extent any such previous grant of right-of-way is a valid existing right, it shall remain in full force and effect."
Consensus among the parciantes, of course, is that everyone knows acequias pre-date the Forest Service and it is incumbent upon the Forest Service to recognize their pre-existing rights. A commissioner on one of the ditches that has been trying to implement its rehabilitation project since 2004 and has been dealing with Miera for two years (the commissioner complained that Miera is seldom in the office and often fails to return his phone calls) said, "We shouldn't have to prove our pre-existing rights. If we go through the permitting process we've already sold ourselves to the devil." Another parciante on the same acequia said to Miera, "Your position is insulting and degrading to the community."
The New Mexico Acequia Association, represented by Janice Varela and David Benavides of New Mexico Legal Aid, attended the meeting to assess the Forest Service position and provide legal counsel and support to the affected acequias. There were also representatives from Senators Tom Udall and Jeff Bingaman and Representative Ben Ray Lujan's offices in attendance. Parciantes are hopeful that the congressional delegation will pressure the Forest Service to recognize the acequias' pre-existing rights and do away with the special use permitting process for acequia rehabilitation.
Also in attendance was Land Grant Forum member and Interstate Stream Commission special water projects coordinator (a Governor Richardson political appointment) Roberto Mondragon who, to everyone's surprise, defended Miera from parciantes' anger regarding his interpretation of the regulatory process. Mondragon, who handles some of the funding through the ISC for acequia projects, knows how rigorous that process is in terms of design and oversight of these projects and should be acting as an advocate for acequias, not an apologist for another layer of bureaucratic control.
By Mark Schiller
Charlie Wolf died on January 28, 2009, more than six years after he had been diagnosed with brain cancer and more than five and a half years after doctors said he would be dead. During that period, Wolf was not only fighting for his life, he was fighting the federal government for the compensation he was entitled to as a former worker in federal nuclear weapons facilities who contracted cancer as a result of exposure to radionuclides in the work place. Just as Wolf experienced the nightmare of radiation treatments, chemotherapy, and bone marrow transplants, he also experienced the nightmare of trying to negotiate a claim for compensation through a government bureaucracy clearly intent upon limiting its liability. The entire story of Wolf's battle with cancer and the government was graphically detailed in a July 22, 2008 Rocky Mountain News story by Laura Frank, and I urge readers to download the article and see for themselves the ordeal Wolf suffered through as a result of the government's attempts to avoid culpability. Sadly, even after providing copious documentation and successfully challenging the government's decision to deny his claim, Wolf died before receiving full compensation and benefits.
With the March 31 introduction of the Charlie Wolf Act by Senator Mark Udall of Colorado, however, Wolf's story may help initiate sweeping reform of the entire Energy Employees Occupational Illness Compensation Program Act (EEOICPA), and a "housecleaning" of the bureaucrats from the Department of Labor (DOL) and National Institute of Safety and Health (NIOSH) who administer the program. Senate Bill 757, co-sponsored by Senators Tom Udall of New Mexico and Michael Bennet of Colorado, and House Bill 1828, introduced by Colorado Representative Jared Polis and cosponsored by Colorado House members Mike Coffman, Diane DeGette, Ed Pelmutter, and John Salazar, seeks "to expand the category of individuals eligible for compensation, improve the procedures for providing compensation and improve transparency."
A summary of the bill's amendments provided by Mark Udall's office includes:
Sec. 3. Specified disease.
Expands the list of cancers for which individuals are eligible to receive compensation. This would be done by amending the relevant part of another law, the Radiation Exposures Compensation Act (RECA), because EEOICPA adopts that law's list by reference.
Sec. 4. Definitions for program administration.
Amends the EEOICPA by the following:
(1) adds an employee of a contractor or subcontractor of an "atomic weapons employer" to the definition of "atomic weapons employee" who is eligible for compensation;
(2) eliminates the requirement that claimants must be subjected to invasive testing procedures to establish the presence of chronic beryllium disease;
(3) places any person who worked at a Department of Energy facility (defined as a facility where radiation and other toxic materials were present) before January 1, 2006 in a "special exposure cohort" and thereby establish exposure for these workers;
(4) expands the list of cancers to include chronic lymphocytic leukemia, basal cell carcinoma, and skin cancer as eligible for compensation; and
(5) allows claimants who were previously denied compensation based on these changes to reapply for compensation given these changes to the Act.
Sec. 5. Change in presumption for finding of cancer.
Shifts the presumption of compensation to the claimant; it does so by presuming that an individual with cancer sustained that cancer while performing his or her duty and places the burden of proof of rebutting that presumption on the National Institute for Occupational Safety and Health (NIOSH) to prove-by clear and convincing evidence-that the exposure did not cause the illness (to prove something by "clear and convincing evidence" and thus deny compensation, NIOSH must show that it is substantially more likely than not that the illness was not caused by the exposure but by some other factor).
Sec. 6. Distribution of information to claimants and potential claimants.
Requires the Department of Labor (DOL), which administers the EEOICPA, to provide a list of physicians qualified to perform medical and impairment screenings from independent medical associations and institutions of higher education; and require claims examiners to provide written notice to claimants who file under either Part B or Part E of the EEOICPA of potential monetary or medical compensation for which they may be eligible.
Sec. 7. Enhancement of site profiles of Department of Energy facilities.
Requires DOL to provide the public with access to the "site exposure matrix" and any other databases or site profiles used to evaluate claims for compensation.
Sec. 8. Clarification of covered illnesses.
Broadens the definition of "covered illness" that is eligible for compensation to include a specific, but not exhaustive, list of specific illnesses; it also allows claimants who heretofore were denied compensation for a specified illness the ability to reapply for compensation due to this clarification.
Sec. 9. Payment of compensation to survivors and estates of contractor employees.
Require the DOL to pay a claimant's estate, if there are no heirs, should a claimant die after filing their claim but before receiving payment.
Sec. 10. Wage loss resulting from exposure.
Allows compensation for a covered illness even if that illness may not have been the sole cause of the claimant's disability.
Sec. 11. Expansion of toxic substance exposure for covered illnesses.
Allows consideration of exposure to radiation in addition to toxic substances-or a combination of both-for compensation purposes.
Sec. 12. Extension of statute of limitations for judicial review of contractor employee claims.
Expands the statute of limitations to 1 year to provide ample time for workers whose claims have been denied to file a petition in federal court.
Sec. 13. Expansion of authority of Ombudsman of Energy Employees Occupational Illness Compensation Program.
Expands the duties of the Office of the EEOICPA Ombudsman to include the ability to provide information to claimants on benefits available under Part B; and grants the Ombudsman the authority to contract for expert services to assist in the execution of its duties (e.g., individuals with expertise in health physics, medicine, and toxicology).
Sec. 15. Enhancement of transparency in claims process.
Requires any federal agency with jurisdiction over the program to provide information to claimants in easily understandable language and, if a claim is denied, provide claimants with a detailed, written explanation of all reasons for the denial and the additional documents, evidence, or information necessary to meet the burden of proof on appeal; and prohibits the Departments of Energy (DOE) and Labor from destroying original documents related to any DOE facility that might reasonably be expected to be used by workers in support of filing claims under EEOICPA.
Sec. 16. Extension of time for claimants to respond to requests for information.
Provides a claimant with additional time (not less than 120 days) to respond to a DOL request for additional information from the claimant about the claim.
Worker advocates I spoke with believe the bill addresses most of their concerns. Although it doesn't totally eliminate the dose reconstruction program, according to Mark Udall's office, Section 4. Number 3, does eliminate dose reconstruction for all workers with "specified cancers" and Section 5. shifts the burden of proof for non-specified illnesses from the claimant to NIOSH. Advocates and congressional aides for several of the bill's sponsors also believe that key administrative personnel at both DOL and NIOSH have not implemented the act as Congress intended and should be replaced.
Both bills are in committee as of this writing and La Jicarita News will follow their progress in upcoming issues.
The New Mexico Citizens Alliance for Responsible Energy and Sustainability (NMCARES), with strong support from Representative Rick Vigil and Senator Phil Griego, successfully helped pass House Joint Memorial 75, which will establish a Statewide Taskforce to make recommendations regarding siting and regulations of industrial wind farms in New Mexico. This Taskforce offers citizens an opportunity to have a voice in the future of industrial wind facilities in New Mexico. Particularly now with the American Recovery and Reinvestment Act, when states are strategically vying for a place in the Renewables Industry, this Taskforce will be able to guide New Mexicans on how to best work with this unregulated industry while protecting communities, culture, heritage, and exceptionally beautiful scenic areas. Headquartered in Ribera, NMCARES is pro-renewables, pro-jobs, pro-health, and pro-healthy communities. www.newmexicocare.org
Professor Ward Churchill, who was fired from his tenured position at the University of Colorado last year, was recently vindicated when a jury found that the university had wrongfully dismissed him for political reasons. Churchill had come under fire after the September 11, 2001 attacks on the World Trade Center and the Pentagon when he published a paper saying that policies of the United States government had contributed to the attacks, and that those who work in the institutions that support inequities around the world bear some of the responsibility. The university began an investigation of Churchill's academic record, claiming he had plagiarized and falsified parts of his research on American Indians (he was chair of the ethnic studies department) and fired him. The jury found that Churchill's political views had been a "substantial or motivating" factor in his dismissal and that his first amendment rights had been violated. His attorneys will now ask the Denver District Court judge to reinstate Churchill in his tenured position at the university. A spokesman for CU said the university will oppose his reinstatement.
A public hearing on the Miranda Canyon Preserve subdivision was heard on April 14 just as La Jicarita News went to press. The hearing was recorded by Cultural Energy and can be heard on its website: www.culturalenergy.org. The Taos County Planning Commission decided to continue the hearing on May 14 so the Weimer family can address:1. a community water system; 2. a community sewer system; 3. firm commitment as how traffic is to be addressed; and 4. documentation as to review by the Corp of Engineers. We will continue to follow developments of this proposal throughout the regulatory process.
Copyright 1996-2006 La Jicarita Box 6 El Valle Route, Chamisal, New Mexico 87521.