A community advocacy newspaper for northern New Mexico
Box 6 El Valle Route, Chamisal, NM 87521
Editorial: Proposed Aamodt Settlement Continues to Unsettle By Kay Matthews
Editorial: Valles Caldera Experiment Near Expiration By Kay Matthews
Appeal Peters Out: An Update on Las Acequias de Chupadero By David Correia and Eric Perramond
A Brief History of American Imperialism, Part 2: Manifest Destiny: Its Theoretical and Legal Underpinnings By Mark Schiller
By Kay Matthews
As we reported in last month's La Jicarita News, both the Taos Pueblo Indian Water Rights Settlement (Abeyta) and the Aamodt Litigation Settlement Act recently passed U.S. Senate and House of Representatives committees. Shortly thereafter, the results of a Brian Sanderoff poll were released, showing the 59 per cent of Pojoaque Valley land owners polled "have negative feelings" regarding the terms of the Aamodt settlement.
No one who has followed this contentious issue is surprised by that. While there has been less public opposition to the Abeyta settlement, the two are inextricably entwined. Both depend on imported water to meet the terms of their respective agreements: Santa Fe County must find 4,000 acre feet per year (afy) for Tesuque, Nambe, San Ildefonso, and Pojoaque pueblos and the water delivery system in the Pojoaque Valley; the Abeyta was initially guaranteed 2,990 afy of water from the Santa Juan/Chama diversion (2,490 for Taos Pueblo; 500 for the Town of Taos; and 50 for El Prado Water and Sanitation District). Subsequently, however, county attorneys for the Aamodt were successful in acquiring 500 afy of water rights from this Abeyta allotment to apply to the Aamodt.
Santa Fe County is supposedly getting a large portion of the water for the Aamodt from Top of the World Farms, in northern Taos County, which it purchased. But the 588 afy that it applied to transfer to the county back in the late 1990s are under protest, and it has yet to apply to transfer the remaining 1,162 afy. Taos County drafted a memorial in 2006 stating it will protest such a transfer application.
La Jicarita News contacted the office of Representative Ben Ray Lujan, who sponsored the legislation in the House, about these questionable water rights. His aid dodged the questions concerning water rights by referring us to Santa Fe County, and stuck to the official response: by introducing the legislation the federal government is fulfilling its fiduciary responsibility to the pueblos and protecting water rights holders in the Pojoaque Valley from potential priority calls by the pueblos in times of shortage. He also stressed that non-pueblo residents' concerns regarding the regional water system were met in 2006 when the settlement agreement was amended to make hook-ups voluntary, rather than mandatory. La Jicarita News contacted Santa Fe County Public Information Office Stephen Ulibarri, who referred us to contract attorney, John Utton, but he never responded to our request for a run-down on where the county currently stands on its acquisition of water rights.
This, of course, further brings into question the ability of Santa Fe County to supply the required amount of water rights. The county is banking on getting 750 afy from domestic wells that hook into the system, but the extent of opposition to the settlement from non-pueblo residents makes this far from certain. The 2006 amended settlement only came about after the Pojoaque Basin Water Alliance insisted on a seat at the negotiating table. Their position that a delivery system provide water only to the pueblos and leave non-pueblo land owners with the use of their wells was ignored.
The importation of water for the regional water system and to supply the pueblos with future growth needs has turned Santa Fe County into a water broker, not only trying to move agricultural water from Top of the World but acequia water in the Middle Rio Grande Basin. And water from the San Juan/Chama diversion project, which both settlements want, is subject to the vagaries of drought and Colorado Indian water rights claims.
If the Abeyta settlement had been negotiated with the intent to tie development to water availability, Santa Fe County wouldn't need to be going after agricultural water. As we've pointed out many times over the course of covering this issue, Judge Edward Mechem's federal court decision, upheld in 2001, ordered that the pueblos are entitled to domestic water rights equal to the amount of water they used between 1846 and 1924: "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." Instead, water sharing agreements could have been negotiated between the pueblos and non-pueblo valley residents, based on current and traditional uses.
By Kay Matthews
In the February 2002 issue of La Jicarita News we wrote about the Valles Caldera National Preserve, the 89,000 acre former land grant (referred to as the Baca Location) in the Jemez Mountains purchased by the federal government in 2000. Because former Senator Pete Domenici, a fiscally conservative Republican, was instrumental in the acquisition, the land came with the caveat that the preserve be managed as a corporation or working ranch and was given a deadline - 2015 - to become self-sustaining. The working ranch theme was no paean to the land grant history, or subsequent private ownership, when cattle grazed the Baca and timber was harvested from its forests. Domenici just wanted to make sure federal support was finite.
From the get-go the environmental community was up in arms about this designation, and in our article we stated, "The battle lines are already being drawn." At the time, writer and historian Bill deBuys was president of the Board of Trustees, which was comprised of the supervisors of Santa Fe National Forest and Bandelier National Monument, several environmental groups, ranching organizations, and various other interests. He took "umbrage" with our characterization, but seven years later, I have to say, we were right. Environmental groups continually opposed the various grazing plans and permits that were let each year and lobbied extensively for more access to recreational activities such as hiking, fishing, and cross-country skiing.
Hunting became another thorny issue. Because the Preserve wasn't making much money from grazing permits or limited recreation (the board continually claimed the Preserve lacked the infrastructure necessary for increased recreational activity), the board (and state legislature) at one point considered taking 25 percent of bull elk tags in the Preserve out of the public lottery to sell them to the highest bidder at $10,000 a piece.
So what's the alternative? The environmental groups are pushing for management of the Valles Caldera as a National Park Service Preserve, with free hunting and fishing opportunities, and Senators Udall and Bingaman are supporting these efforts (although other options, such as management by the Forest Service or U.S. Fish and Wildlife Service are also being considered). What you can bet won't happen is " any comprehensive discussion of a federal policy regarding the management of government land that was once land-grant land," as Malcolm Ebright pointed out in his February 2002 La Jicarita News article "Land Grant History of the Valles Caldera, or Baca Location No. 1."
Note: In last month's La Jicarita News, geographers David Correia and Eric Perramond wrote about the Las Acequias de Chupadero water transfer requests by Santa Fe Properties (SFP), represented by Soren Peters, son of Gerald Peters. The acequia commissioners denied the requests, based on the 2003 state statute that empowers commissions to deny transfers they determine would be detrimental to the acequias or community ditch or its members. SFP filed an appeal of the commission's decision. Below the authors provide an update.
This is a story about small miracles of enormous significance. Last summer a Santa Fe corporation that irrigates greed over gardens coveted the water of a valley where it flows more by common cause than nature's laws. Santa Fe Properties purchased water rights in the small Santa Fe County village of Chupadero. The water that flows through the acequias in Chupadero arrives via a transmountain diversion from the neighboring valley, a testament to the deep histories and powerful social dimensions of water in New Mexico. The corporation, a development company controlled by the real estate mogul Gerald Peters, hoped to escape this community history and transform the water in the ditches into upscale homes on the mesa. When the Commission denied the request, SFP filed an appeal with the District Court. Our article last month chronicled this history and current legal challenge. But shortly after the article went to press, SFP vacated their appeal. The parciantes, the Mayordomo, the Commissioners, and David Benavides of New Mexico Legal Aid, who represented the acequia, were surprised but pleased with the withdrawal. The decision to deny the transfer, a decision rooted in more than a century of local water governance, now stands.
In the grandest tradition of northern New Mexico, the acequia held the first annual Matanza de Las Acequias de Chupadero on November 7th at the house of commissioner Teresa Leger de Fernandez to celebrate the victory. With a pig roasting in a pit, and shouts of "¡Que Viven Las Acequias!" echoing in the valley, the commissioners gave speeches to mark the occasion. If Agua es Vida, noted Leger de Fernandez, then Acequia es Comunidad. Commissioner Bill Lazar suggested that the victory is another link in a social and ecological chain between generations of parciantes first forged by the 1897 decision to build the transmountain diversion. This chain, he reminded the parciantes, is one of mutual responsibility and shared obligation. The third commisioner, Jack Miller, took time away from carving the pig to reflect on the significance of the victory. When SFP proposed its transfer, as Lazar noted, 20 acre/feet had already been transferred forever out of the valley. That earlier transfer occurred because no acequia bylaws were in place to prevent the loss of community water. The latest SFP proposal would have removed one-sixth of all remaining water. The strengthening of the acequia's bylaws prevented this new transfer.
Photo by Eric Shultz
Mayordomo David Roybal holding the pig
While the victory didn't produce case law for the defense of acequia rights, unlike the Cook v Acequia del Gavilan case from the Española area (see La Jicarita Oct 2007 and Oct/Nov 2008), it does provide a model for other acequias confronting similar threats. And the matanza, like the water that will remain in the ditches, reminds current parciantes of their links to the generations that preceded them. So if our theme is community defense, we are inspired by the many ways New Mexicans celebrated improbable David versus Goliath victories. One of these ways was the tradition of the Corrido. In that tradition, we offer our own ballad, the Corrido de Chupadero (forgive us our sentimentality).
En el pueblo de Chupadero
La lucha es terminado
Miren lo que ha sucedido
No agua a la mesa!
En Chupadero nos verán
Gozando a la voz de la alegría
A la matanza los parciantes celebran
Improbable fue la victoria
A la fiesta decía Teresa Fernandez:
Nuestra acequia es nuestra vida
Y ella decía después
Nuestra agua mató su dinero
¿Cual lección ha aprendado?
Los comerciantes de Santa Fe
Vean agua por ojos verdes
Y sus abogados hacen mal ley
Hoy hay un grito en el valle
¡Que viven las acequias!
Aún cada perro en la calle
Cantan el corrido de las parciantes
La matanza y el asado
Nos esperan y ha llegado
Hoy celebramos su victoria
Y quedamos con vigiliancia
Ya con este me despido
Soy orgulloso ser un compañero
Aqui se acaba cantando
El Corrido de Chupadero
In the village of Chupadero
The fight is over
Listen to what has happened
No water to the mesa!
In Chupadero you will see us
Enjoying life to the sound of merry-making
At the matanza the parciantes celebrate
Their improbable victory
At the party Teresa Fernandez said:
Our acequia is our life
And afterwards she said
Our water killed their money
What lesson have we learned?
The businessmen of Santa Fe
See water through green eyes
And their lawyers make bad law
Today there is a shout heard in the valley
Long live the Acequia!
Even the dogs in the streets
Sing the ballad of the parciantes
The butchering and roasting
Are waiting and have arrived
Today we celebrate your victory
And remain with vigilance
Now with this I say farewell
I am proud to be a friend
This is the end of the singing
Of the ballad of Chupadero
HELP-New Mexico is announcing an Open Call for Proposals beginning November 3. HELP-NM is a foundation that provides small capacity building sub-awards to grassroots faith/community based agencies whose budget is less than $500,000. Priority will be given to those agencies that have been in existence less than five years; however, those agencies with more than five years' tenure remain eligible. Applicants must have a proven record of providing services to the homeless, elders in need, at-risk youth, families and individuals in transition from welfare to work, those in need of intensive rehabilitation such as addicts or prisoners, and organizations that help married couples form and sustain healthy relationships. Ten workshops, or Request for Proposals trainings, will be held across the state. Northern New Mexico workshops will be held in Farmington on November 3; Taos on November 4; and Las Vegas on November 12. For a full description of each workshop, times, and locations log onto www.helpnm.com. The organization is asking participants to register as soon as possible. For more information or to register you can contact Martha Aragon, 505 766-4907, firstname.lastname@example.org.
Sugar Nymphs Bistro will be hosting an art gallery show during December and January at the restaurant in Peñasco-15046 Hwy. 75 (just east of the high school sign). Local artists are invited to show their work, up to five small to medium sized pieces (space is an issue). If artists want to include affordable pieces ($50 or less) that can be sold for holiday gifts, that would also be appreciated. They can drop off work the first week of December at the restaurant. Contact Kai Harper or Ki Holste at 575-587-0311 for more information.
Taos Soil and Water Conservation District is holding its 68th Annual Meeting and Pot Luck on Friday, December 11 from 6:00 to 8:00 pm at the Juan I. Gonzales Agricultural Center, 202 Chamisa Road (behind the Sagebrush Inn). All acequia members, farmers, ranchers, organic gardeners, private landowners, and conservation enthusiasts are invited to attend. Participants are encouraged to bring a side item or dessert. RSVP the District Office at 575-751-0584 by December 7.
The 16th Annual New Mexico Water Dialogue Meeting, "State Water Planning: A Path Forward," will be held on Thursday, January 14, 2010 in Albuquerque at the Indian Pueblo Cultural Center - Chaco I & II, 2410 12th Street NW. Registration includes lunch catered by the Indian Pueblo Cultural Center and morning and afternoon beverages and snacks. Early registration - prepaid before January 9 - is $30. Registration at the door is $40. For more information and a registration form go to www.nmwaterdialogue.org. You can email a registration form to email@example.com.
A Brief History of American Imperialism, Part 2: Manifest Destiny: Its Theoretical and Legal Underpinnings
By Mark Schiller
As noted in my previous article, James Monroe declared the United States' hegemony over the western hemisphere in 1823. The Monroe Doctrine, historian Richard W. Van Alstyne asserts, " . . . is imperialism preached in the grand manner, for the only restrictions placed upon the directing power are those which it imposes on itself." A letter from Monroe's successor, John Quincy Adams, to his father John Adams, not only echoes Jefferson and Monroe's imperialist views, it ratchets them up a notch: "The whole continent of North America appears to be destined by Divine Providence [emphasis added] to be peopled by one nation, speaking one language, professing one general system of religious and political principles, and accustomed to one general tenor of social usages and customs. For the common happiness of them all, for their peace and prosperity, I believe it is indispensable that they should be associated in one federal Union." Adam's belief that the finger of "Divine Providence" was directing this expansionism was key to the presumption of "Manifest Destiny."
According to historian Frederick Merk, manifest destiny "meant expansion, prearranged by Heaven, over an area not clearly defined. In some minds it meant expansion over the region to the Pacific; in others, over the North American continent; in others, over the hemisphere." Van Alstyne suggests that the " . . . notion of a pre-emptive right to the continent was given legal affirmation by the first Colonial charters, which designated the Pacific Ocean . . . as the western boundary of the several colonies." He goes on to say, "To this legal fiction was added the argument that the continent belonged as of right to those who could colonize it."
A 1751 letter from a Virginia planter to the Board of Trade in London makes this claim even more specific by adding a note that Jefferson and the latter expansionists, who endorsed his vision of an army of yeoman farmers populating the west, would sound as their rationale for land theft: ". . . the Property of these uninhabited Parts of the World must be founded upon prior Occupancy according to the Law of Nature, and it is the Seating & Cultivating the soil & not the bare traveling through a Territory that constitutes Right . . . [emphasis added]." Ironically, this very same idea was echoed, in an interestingly nuanced way, exactly one-hundred years later by Henry David Thoreau. Although his most famous essay "Civil Disobedience" specifically protested the Mexican-American War, Thoreau, like many other 19th century intellectuals (Emerson, Melville, and Whitman, to name just a few), strongly endorsed the Jeffersonian ideal of the colonizing yeoman farmer, stating in his 1851 essay "Walking": "I think that the farmer displaces the Indian even because he redeems the meadow, and so makes himself stronger and in some respects more natural." In fact, throughout the 18th and 19th centuries, western thought linked culture/civilization to "cultivation" and the belief that the life of a farmer was socially and spiritually redemptive.
Moreover, implicit in the conceit that expansion was divinely ordained was the racist presumption that the Anglo-Saxon race and its capitalist institutions were innately superior to all other races and cultures. Even abolitionist stalwarts such as Emerson believed black people were "so inferior a race [that they] must perish shortly like the Indians." I'll specifically discuss the role racism played with regard to Mexicans in a subsequent article in this series, but for now I'll limit my discussion to the role it played in establishing legal mechanisms to rationalize and "legitimize" dispossession of Native Americans within the already established states and the newly acquired territories, setting precedents that affected Spanish and Mexican land claims adjudication.
Beginning with the 1823 United States Supreme Court decision in Johnson v. M'Intosh, rendered by Chief Justice John Marshall, the judiciary established, in the words of legal historian Christine A. Klein, both the ". . . exclusive right of the discovering sovereign to extinguish native title . . ." and " . . . the principle that Indian title was less than fee simple ownership, an interest described as a 'right of occupancy' subject to the 'ultimate dominion' of the federal government." Professor Klein goes on to note, "The view that a tribe's right to its homeland constituted less that full fee simple title was rooted in a Eurocentric view of the inferiority of the Indian people, the idea that [as the decision states] 'the character and religion of [the Indians] afforded an apology for considering them as a people over whom the superior genius of Europe might claim ascendancy.'" The decision attempts to further rationalize these racist presumptions by noting precedent in European history: "The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity . . . ." By contrast, it also brazenly maintains that "The title by conquest is acquired and maintained by force. The conqueror prescribes its limits."
Marshall expanded upon this bigoted rationale in his 1831 decision regarding the case, The Cherokee Nation vs. The State of Georgia, in which he found that Indian tribes ". . . occupy a territory to which we [the United States government] assert a title independent of their [the Indian tribes'] will . . . . they [the Indians] are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian."
Andrew Jackson then pursued this paternalistic policy to its logical conclusion with the Indian Removal Act of 1830, a series of so-called treaties with eastern tribes that resulted in the forced removal of tens of thousands of Native Americans. On 7 December 1835 Jackson told Congress, "The plan of removing the aboriginal people who yet remain within the settled portions of the United States to the country west of the Mississippi River approaches its consummation. It was adopted on the most mature consideration of this race, and ought to be persisted in till the object is accomplished. . . . All preceding experiments for the improvement of the Indians have failed. It seems now to be an established fact that they can not live in contact with a civilized community and prosper. . . . A barrier has thus been raised for their protection against the encroachment of our citizens and guarding the Indians as far as possible from those evils which have brought them to the present condition." Jackson's speech not only echoed Marshall's judgment that Native Americans were an inferior, dependent race, it amplified it by asserting they were constitutionally incapable of "improvement" (clearly meant as a rationale for genocide) and makes the patently self-contradictory claim that the government was protecting Native Americans from encroachment by dispossessing them. Expanding on this absurd line of reasoning, Jackson suggested in an 1843 letter that the United States was not dispossessing people with its imperialist expansion but rather "extending the area of freedom."
Even this was not enough, however. The Supreme Court and Congress would subsequently compound these injustices by asserting that the already exploitative treaties the government negotiated with Native Americans, as well as the 1848 Treaty of Guadalupe Hidalgo that ended the Mexican American War, were not "the supreme law of the land," as the second section of the fourth article of the Constitution of the United States declares, but were subject to interpretation through Congressional statute. In the 1870 Supreme Court Cherokee Tobacco case the Supreme Court ruled: "It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our government. The effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty [emphasis added]. In the cases referred to these principles were applied to treaties with foreign nations. Treaties with Indian nations within the jurisdiction of the United States, whatever considerations of humanity and good faith may be involved and require their faithful and good faith may be inobligatory. They have no higher sanctity; and no greater inviolability or immunity from legislative invasion can be claimed for them. The consequences in all such cases give rise to questions which must be met by the political department of the government. They are beyond the sphere of judicial cognizance. In the case under consideration the act of Congress must prevail as if the treaty were not an element to be considered [emphasis added]. If a wrong has been done the power of redress is with Congress, not with the judiciary, and that body, upon being applied to, it is to be presumed, will promptly give the proper relief."
Thus, Congress, with the explicit approval of the judiciary, could (and did) simply make up the rules by which treaties were interpreted to suit its expansionist agenda regardless of the conditions outlined in the treaties themselves. In other words, the "limits" of treaties, like indigenous land titles, are prescribed by the conqueror.
The land and resources made available for capitalist exploitation through these legal precedents, which resulted in the relocation of eastern tribes to the "Indian Territories" and limiting of western tribes to reservations, still failed to satisfy the rapacious onslaught of expansionism "supercharged" by an Anglo population that doubled between 1860 and 1890. Abetted by a group of self-righteous do-gooders who believed Native Americans must become "integrated" members of
American society, Senator Henry L. Dawes of Massachusetts hatched a scheme to further dispossess Native Americans by allegedly instilling the values of western civilization in them.
This movement, which culminated in the Dawes Act of 1887, made presumptions about tribal and communal people and common property that would also carry over to the adjudication of Indo-Hispano community land grants (the reader should bear in mind that this movement was contemporaneous with Surveyor General Julian's politically motivated attempts to "reform" the Spanish and Mexican land claim adjudication process and the establishment of the Court of Private Land Claims).
In the "Annual Report of the Board of Indian Commissioners, 1885," endorsed by President Grover Cleveland, it was asserted that "The tribal organization, with its tenure of land in common, with its constant divisions of goods and rations per capita, without service rendered, cuts the nerve of all that manful effort which political economy teaches us proceeds from the desire for wealth, True ideas of property with all the civilizing influences that such ideas execute are formed only as the tribal relation is outgrown." In other words, as Dawes himself would articulate at the 1886 "Conference of Friends of the Indians" the following year, "selfishness . . . is at the bottom of civilization." Without selfishness and private property, he asserted, there was no incentive to "progress." "The common field is the seat of barbarism," he famously said, "while the separate farm is the door to civilization."
Ironically, the 1885 Report goes on to underwrite this idea by asserting, "The fact that robbery is said to be almost unknown among Indians within the tribe is largely explained by the fact that property, too, in the true sense of the word, is almost unknown. There is an utter barbarism in which property has almost no existence. The tribal organization tends to retain men in such barbarism. It is a great step gained when you awaken in an Indian the desire for the acquisition of property of his own, by his own honest labor." In the words of cultural anthropologist Marshall Sahlins, "Having equipped the hunter with bourgeois impulses and paleolithic tools, we judge his situation hopeless in advance."
The "humanist" solution to this presumed dilemma devised by Dawes and his supporters was obvious; turn these traditionally nomadic tribal peoples into Jeffersonian yeoman farmers by privatizing their reservations into small (80-160 acres), individually owned allotments. Surely, they believed, this would instill "pride of ownership" and industry in these otherwise shiftless heathens. However, the underlying reason for the government's strong support for this preposterous sham was once again colonialist: all reservation lands not allotted would be available for Anglo development. While the Act did pass successfully through Congress, Dawes' scheming did not go undetected. During the debate over the issue, Senator Henry M. Teller of Colorado denounced the legislation for what it really was: ". . . the real aim of [the Dawes Act] is to get at the Indians land and open it up for resettlement. . . . If this were done in the name of greed it would be bad enough; but to do it in the name of humanity, and under the cloak of an ardent desire to promote the Native American's welfare by making him like ourselves, whether he will or not, is infinitely worse." His insights, unfortunately, fell on deaf ears.
In 1887, when the Dawes Act, which Dawes referred to as the "Indian Emancipation Act," was passed by Congress, 138 million acres were in tribal ownership. Just thirteen years later, only 78 million acres remained in Native American ownership, individual and tribal. Moreover, by 1921 more than half the people within tribes affected by the Dawes Act were landless because the federal government failed to provide protection from unscrupulous land speculators.
In 1846, as the United States was invading Mexico, Karl Marx wrote this penetrating analysis of how the capitalist state divests the proletariat of communal property: ". . . the [capitalist] State exists only for the sake of private property. . . . Through the emancipation of private property from the community, the State has become a separate entity, beside and outside civil society; but it is nothing more than the form of organisation which the bourgeois necessarily adopt both for internal and external purposes, for the mutual guarantee of their property and interests. Since the State is the form in which the individuals of a ruling class assert their common interests . . . it follows that the State mediates in the formation of all common institutions and that the institutions receive a political form. Hence the illusion that law is based on the will [of the community], and indeed of the will divorced from its real basis - on free will. Similarly, justice is in its turn reduced to the actual laws. Civil law develops simultaneously with private property out of disintegration of the natural community."
As we shall see, all of the legal and legislative actions discussed in this article served as precedents upon which the dispossession of the Indo-Hispano residents of New Mexico were predicated.
By Kay Matthews
On October 6 Carson National Forest sent out a scoping letter on the proposed reconstruction of compuertas by four acequias in the Peñasco area that have been trying to improve their systems for several years. Earlier this year Carson National Forest demanded that because their projects are on the public land the acequias had to get special use permits from the Forest Service, which triggers the NEPA (National Environmental Policy Act) process. In the April La Jicarita News we wrote about the public meeting that was held in Peñasco to argue the case that acequias pre-date the Forest Service and should not have to obtain the agency's permission to maintain or improve their acequias located on forest land.
Typical log structure presa
Acequias Chamisal y Ojito, Llano de San Juan Nepomuceno, Acequia Aguilar de El Valle, and Acequias de las Trampas ended up submitting their proposed projects to the Forest Service for NEPA review. The Forest Service scoping letter describes the various projects. Chamisal y Ojito and Llano de San Juan Nepomuceno want to reconstruct their concrete compuerta on the Rio Santa Barbara to more efficiently divert water and replace the existing corrugated metal pipe drop structure. The Acequia Aguilar de El Valle is a private ditch in the village of El Valle that wants to replace its rock and log diversion with a cinder block headgate, and Acequias de Las Trampas wants to replace its rock and log compuerta with a concrete structure. The Acequia de Ojo Sarco and Acequia del Llano in El Valle have not applied for special use permits from the Forest Service.
All the acequias have been under the gun to complete their projects or lose capital outlay funding from the state legislature. While all the acequias initially expressed reluctance to recognize Forest Service authority over maintenance and reconstruction of their headgates, during an on-site meeting at the Rio Santa Barbara project site this summer, Carson Forest Supervisor Kendall Clark offered to consult with the Regional Office about waiving fees associated with the NEPA review, acknowledging that in previous discussions with the acequias the issue of fees had not been raised. Acequias de las Trampas had already been assessed a cost share fee of $4,500. Subsequently, the Forest Service offered to waive both application and cost share fees.
According to Bonafacio Lopez, one of the commissioners on the Llano San Juan ditch, the commissioners were "caught between a rock and a hard place." Unless they were able to proceed with the reconstruction of their compuerta this year the acequias would lose their funding from the state legislature. They decided to obtain a special use permit from the Forest Service and recently awarded a contract for the reconstruction. They hope that the project can be completed this November. Lopez also said they asked David Benavides of New Mexico Legal Aid to help them draft language to include in their special use permit request that states their opposition to the Forest Service requirements.
This is a one-time fee waiving offer by the Forest Service that puts acequias on notice that they should factor in cost share fees when they make their capital outlay requests.This is not the solution to the controversy of access to acequias on public lands, however, and in a phone conversation with a Washington D.C. aid to Representative Ben Ray Lujan, La Jicarita News asked if the congressman's office is taking any steps to address the problem. According to the aid, Lujan's office at first pursued the idea, with both the Regional Forester and Secretary of Agriculture, of having acequia maintenance and construction projects classified as Categorical Exclusions, a NEPA category that would exempt them from full-fledged assessments and avoid fees and delays. This proposal was rejected. Lujan's aid told La Jicarita News that even though the four Peñasco area acequias were granted fee-waivers, the Forest Service continues to place an unfair burden on the acequia community and the solution to the problem lies with a legislative fix: specifically exempting acequias from regulations such as the Federal Land Policy and Management Act (FLPMA), which the Forest Service cites as its authority to regulate acequia easements and require special use permits.
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