La Jicarita News - Community Advocacy for Northern New Mexico

La Jicarita News received a grant from the New Mexico Historical Records Advisory Board to write an article evaluating the effect George W. Julian's tenure as Surveyor General of the New Mexico Territory (1885-1889) had on the process of adjudicating Spanish and Mexican land grants. We will be serializing an abridged version of that article in this and upcoming issues of the paper.

Known as "Old Malaria" throughout the New Mexico Territory because of his reputation for belligerence and misanthropy, George W. Julian, Surveyor General of the Territory from 1885-1889, is one of the central figures in the longstanding controversy regarding the probity of many of the adjudications of Spanish and Mexican land grants in New Mexico by the federal government.

While no comprehensive study of Julian's tenure as Surveyor General has yet been undertaken, historians have been divided in their opinion as to whether he actually enacted reform of the adjudication process that resulted in valid grants being confirmed to their legitimate owners to the extent to which they were granted, or merely waged a campaign on land speculators and grant heirs who, he believed, were monopolizing what he and the government considered part of the public domain. In his January 13, 2007 "Traildust" column in the Santa Fe New Mexican, historian Marc Simmons calls Julian "a straight shooting and dedicated reformer." Historian Malcolm Ebright, on the other hand, suggests that " . . . his zeal to correct the abuses of land grant adjudication under the surveyor general system led him [Julian] to an overly critical questioning of many perfectly valid grants."

The purpose of this article is to investigate whether Julian was, in fact, a dedicated reformer who acted justly in his recommendations regarding confirmation of the grants he reviewed, or a colonial bureaucrat bent upon keeping as much land in the public domain as possible. By closely investigating the allegations Julian made against what he believed were the most egregious examples of land fraud in his major public statement on the situation, "Land Stealing in New Mexico" in the July 1887 issue of what was then the United States' preeminent periodical The North American Review, I propose to find an answer to that question.

Before critiquing Julian's investigations of these grants, however, it's critical to examine his background in order to understand the predispositions he brought to the Office of the Surveyor General. According to his biographer, Patrick W. Riddleberger, " . .. as a very young man a habit of contentiousness deveped in Julian. He had left his job [as a surveyor] on the Whitewater Canal in a huff after a disagreement with his employer; as a teacher, although he proved himself a good disciplinarian, he did not enjoy amicable relations with his students; later a conflict with his brother Jacob would bring the dissolution of their law partnership. And controversy would characterize Julian's political career from beginning to end." This combativeness, coupled with a propensity to take his battles to the press, were hallmarks of Julian's tenure as Surveyor General.

Having trained as a lawyer, Julian began his political career in 1845 as an Indiana state assemblyman representing the conservative Whig party. Julian, however, was a political chameleon, changing policy and party affiliation as often as others change their clothes. Thus, he became a member of a short-lived but important third party, the Free Soilers, and won election to the United States Congress in 1848. According to historian William Appleman Williams, the Free Soil Party, mostly composed of anti-slavery, pro-expansionist members of the Whig and Democratic parties from the northeast, " . . . campaigned vigorously under the banner of 'Free Trade, Free Labor, Free Speech, and Free Men.'"

In point of fact, the anti-slavery component of the Free Soil Party platform was merely an offshoot of the Jeffersonian notion of populating the west with an army of Anglo yeoman farmers and was careful in distinguishing itself from the clearly more radical abolitionist movement. In an 1851 speech before the House of Representatives Julian declared: "Should the bill now under discussion [The Homestead Act] become a law, the poor white [emphasis added] laborers of the South, as well as of the North, will flock to our territories; labor will become common and respectable; our democratic theory of equality will be realized . . . and thus physical and moral causes will combine in excluding slavery forever from the soil. The freedom of the public lands is therefore an anti-slavery measure." His main concern was the dispensation of the public domain while emancipation of the slaves was clearly a secondary concern.

Julian remained with the Free Soil Party as its popular support waned with the passage of the Compromise of 1850, which admitted California to the union as a non-slave state. This bill created the Territories of New Mexico and Utah with the provision that slavery within those Territories would be determined by popular vote (this provision repudiated the Wilmot Proviso, which would have forbidden slavery in all territories acquired from Mexico). As a result of the Compromise and Julian's increasingly contentious relationship with Indiana anti-slavery Democrats, who previously supported his candidacy, Julian was defeated in his bid for reelection in 1851. He remained a Free Soil stalwart nonetheless and was its Vice Presidential candidate in 1852, but that election marked the party's demise when it received less than five percent of the popular vote.

Julian returned to his law practice for the remainder of the decade (1852-1860) but continued to be active politically. This period was marked by great political unrest caused by the Kansas-Nebraska Act of 1854, which repealed the Missouri Compromise of 1820 that prohibited slavery above the latitude 36 degrees 30 minutes in the territories included in the Louisiana Purchase. Although the Act was championed by the popular Illinois Democrat Stephen A. Douglas, reaction against it once again spawned a third party coalition of antislavery, probusiness members of the Whig, Democratic, and Free Soil parties in 1854 that evolved into the Republican Party, which Julian joined. While making a strong showing in the northeast and northern midwest, John C. Frémont, the first Republican candidate for president was defeated in 1856. Learning from their mistakes, party leadership in 1860 constructed, in the words of Julian's biographer, Patrick W. Riddleberger, a ". . . platform [that] was a masterpiece of expediency designed to draw the votes of as many northern groups as possible while offending none. The effect of the guiding hand of professional politicians was unmistakable. . . . For those opposed to the extension of slavery but fearful of abolitionism there was the assertion that the states had the right to control their own domestic institutions. There were planks favoring a protective tariff and a transcontinental railroad, both designed to attract eastern business and industrial interests. . . . The homestead plank would lessen the objections of western Free Soilers to those concessions to the East. This platform and the nomination of Abraham Lincoln &endash; an 'available' candidate from a pivotal western state &endash; made it apparent that a Republican victory in 1860 would be a fusion victory." Although Julian was publicly claiming the moral high ground in his 1860 congressional campaign, political expediency of this sort would mark his candidacy and career.

Moreover, while Julian was considered a "radical" in the Republican Party with regard to slavery, during the Civil War he supported the clearly racist party program to colonize emancipated slaves in Central America rather than grant them United States citizenship. In a lengthy speech before Congress on January 14, 1862, Julian suggested the government send the emancipated slaves to Haiti where they would find "happy homes among a kindred people."

Julian remained in Congress throughout the decade (1860-1870) criticizing the administration of the war, advocating a draconian settlement with the secessionist states, and helping draft the Homestead Act.

Concerning post war reconstruction in the south Julian stated: "Let us convert the rebel states into conquered provinces, remanding them to the status of mere Territories and governing them as such in our discretion." Following the Civil War, he also advocated the speedy trial and execution of both Jefferson Davis and Robert E. Lee.

His proposal that the government reduce the secessionist states to "mere Territories" also dovetailed with his support of the Homestead Act, which he envisioned would transform the enormous plantations of the south into settlements of small independent farmers. This vision complimented his expansionist notions of populating the west with an army of yeoman farmers, which he believed would be both politically expedient and morally redemptive.

Although Julian promoted himself as a "radical reformer" proclaiming "The rights of man are sacred, whether trampled down by Southern slave-drivers, the monopolists of the soil, the grinding power of corporate wealth, the legalized robbery of a protective tariff, or the power of concentrated capital in alliance with labor saving machinery. . . .", his actions often contradicted his rhetoric. Not only did he invest in railroad stocks and bonds, whose monopolization of the public domain at the homesteaders' expense he outspokenly condemned, but, according to his biographer, once the slavery question was settled by emancipation he "displayed little concern for the problems of the freedman." His many critics characterized him as an opportunist, a disorganizer, and a misanthrope. The Indianapolis Journal suggested he had ". . . the temper of a hedgehog, the adhesiveness of a barnacle, the vanity of a peacock, the vindictiveness of a Corsican, . . . and the duplicity of the devil."

While Julian promoted himself as the keeper of the public domain and the champion of the yeoman farmer, the main piece of legislation with which he attempted to accomplish this failed to address the realities of western farming and ranching within a dramatically changing economy and a burgeoning populace. The 160-acre plots allotted by the Homestead Act were totally inadequate for subsistence in the arid west, and while the population of the United States increased by thirty-two million people between 1860 and 1890, the number of entries perfected under the Homestead Act was less than two million. Meanwhile, land speculators, whom Julian denounced as parasites upon the public domain, continued to monopolize vast portions of it by exploiting loopholes in the Act.

After five straight terms in the House of Representatives (1860-1870) Julian was defeated in the Republican primary in 1870. Feeling that he had been betrayed by his party, he vowed to return to Congress in 1872. Having already transformed himself from a conservative Whig to a "radical" Republican, Julian once again changed his political identity to the more conciliatory "liberal" branch of the Republican party. According to his biographer, "As the nominating convention [of 1872] approached, Julian's political organ came out with articles designed to ameliorate the damage of his recent criticism of the Republican party. The Radical [his brother Isaac's newspaper] now stressed his criticism of the Democratic party, an indication that the 'New Departure' was not so imperative that it could not be jettisoned if political expedience demanded it." Julian's name, however, failed to even be presented to the nominating committee and "liberal" candidates throughout the Republican party were soundly defeated. Thus Julian once again performed an about face and in 1876 became a member of the Democratic party, which he had been outspoken in denouncing since 1854.

During this period (1875-1885) Julian, as well as struggling to maintain a law practice, became a paid political hack for the Democratic Party. Ironically, after having advocated severe punitive measures be adopted regarding the South during the Civil War and the period of reconstruction, he now made speeches urging the reconciliation of North and South. By 1885, when Grover Cleveland was elected President, Julian had become financially destitute and was forced to join the long line of Democratic party standard bearers seeking patronage jobs, a group he previously denounced as parasites.

Turning now to Julian's "Land Stealing in New Mexico" article, we find he begins with an outright lie regarding how and under what circumstances he obtained the position of Surveyor General. In the opening paragraph he claims to have received a letter from President Cleveland ". . . ask[ing] me if I would accept the office of Governor or Surveyor General of New Mexico, and cooperate with him in breaking up the 'rings' of that Territory, stating that he considered the latter position the most important of the two. The question was a complete surprise to me, and my strong inclination was to return a prompt answer in the negative. In view of advancing years and failing health, I had no desire to venture so far out on the frontier, and engage in a vexatious struggle with the organized roguery that had so long afflicted New Mexico. On conferring with intelligent friends on the subject, however, my impressions were modified, and after listening to their stories about the climate of Santa Fé and indulging in dreams of restored health, I finally answered the President in the affirmative."

Julian's journal and letters to Cleveland and other high-ranking Democrats concerning a patronage appointment for himself tell a very different story, however. On March 22 of 1885 Julian wrote an unknown correspondent a letter found in the Papers of Grover Cleveland stating: "Without some position now, I shall be obliged . . . to end my life in a dismal scuffle for bread and butter for myself and children . . . ." Apparently Julian had solicited and received letters of recommendation from former New York governor and Democratic presidential candidate Samuel J. Tilden and New York State Congressman Abram S. Hewitt for the post of Commissioner of the General Land Office in Washington D.C. However, the appointment of William A. J. Sparks to that office left Julian in dire circumstances. Another letter from Julian to an unknown correspondent also found in the Cleveland Papers states: "My defeat is very vexatious and humiliating, and nothing but financial necessity could have induced me, at my time of life, to join the army of office beggars in Washington. I am ashamed of it."

Still hoping for an appointment in Washington, Julian was lukewarm in his response to Cleveland's offer of a federal position in the New Mexico Territory saying, "As to New Mexico I had no thought of any position so far out on out frontiers and among so rough and miscellaneous a population." Suddenly fearing, however, that he would not be considered for any other appointment, Julian's subsequent letters to Cleveland became decidedly more solicitous. Assuming the Governorship of the New Mexico Territory was his for the taking he wrote Cleveland, "I think I could make myself useful in checking the . . . land monopoly in the territory, and especially so if the Surveyor General should be the right sort of man." Having subsequently discovered that Edward G. Ross of Kansas had been appointed Governor of the New Mexico Territory in the interim, Julian wrote Cleveland back in great haste apologizing for his "impolitic diffidence" and imploring Cleveland to consider him for another appointment. When Cleveland then offered the Surveyor Generalship position, Julian was quick to jump at it.

Cleveland had run on a platform of reform after sixteen straight years of Republican administrations marked by wholesale corruption and fraud. He was not much of a reformer, however. According to historian Henry F. Graff Cleveland practiced " . . . a form of Jeffersonianism dedicated to small, mostly inert government aimed more at protecting business than promoting the substantial needs of the larger population. .. ." Graff goes on to say that by and large Cleveland's cabinet "consisted of railroad and finance men" &endash; in other words, the group who benefited most from the corruption of the previous administrations.

In New Mexico that corruption consisted primarily of misappropriating Spanish and Mexican land grants from their legitimate Mexican owners by land speculators who were also, in some cases, able to obtain exaggerated surveys approved by ignorant and corrupt surveyors general. The two most notorious examples, which both received much public notoriety, were the Maxwell grant, surveyed and patented for 1,714,764.94 acres, and the Sangre de Cristo grant, surveyed and patented for 998,780.46 acres. As a result of the scandal that ensued, Congress grew reluctant to act on the recommendations of the Surveyor General and fewer than twenty-five percent (forty-six) of the 194 New Mexico Hispano land claims submitted to the Surveyor General were confirmed by Congress, despite the fact that 136 were recommended for confirmation and only eight were rejected outright. Moreover, the vast majority of the claims that had been confirmed (thirty-seven) were acted upon between 1858 and 1860, and Congress did not confirm a single claim in New Mexico subsequent to 1879.

Thus Cleveland was under a great deal of pressure from the public and Congress to break this log jam of unacted upon land claims that was preventing new settlement in the Territory and the exploitation of valuable natural resources, by smashing the so-called "Santa Fe Ring", which was monopolizing much of the land that had been confirmed. (The "Santa Fe Ring" was a loose consortium of lawyers, land speculators, wealthy merchants, judges, both state and federal, most of the previous surveyors general and governors and elite members of the Hispano community, who, as well as engaging in land speculation, sometimes acted as shills within their own communities, convincing members to sell their shares in land grants well below market value.)

Returning to Julian's article, he goes on to describe how the Office of the Surveyor General was originally formulated and gives a general history of his predecessors' abuses of it. Julian asserts the Office of Surveyor General failed to attract competent men because "Official life in an old Mexican province, and in the midst of an alien race [emphasis added], offered few attractions to men of ambition and force. Moreover, the men who could be picked up for the work were exposed to very great trials. Their duties presupposed judicial training and an adequate knowledge of both Spanish and American law; but with one or two exceptions they were not lawyers at all, while they were clothed with the power to adjudicate the title to vast areas of land." This, by and large was true, and in fact at least three of Julian's predecessors were land speculators themselves and held interests in grants they were adjudicating while they were in office.

However, William Pelham, the first Surveyor General of New Mexico, had written Congress in his first annual report of 1855, "the present law has utterly failed to secure the object for which it was intended." To which the Committee on Private Land Claims of the House of Representatives responded that it would never " . . . be in the power hereafter of this House to make such an examination as will be entirely satisfactory. . .." In other words, Congress was aware and complicit in the corruption associated with the confirmation of these land claims by failing, for over thirty years, to provide the oversight and funding necessary to enforce the legislation it had enacted to protect the interests of the legitimate grantees and their heirs as it had promised in the Treaty of Guadalupe Hidalgo. Historian Roxanne Dunbar Ortiz, comments, "When land monopolists [members of Santa Fe Ring] overreached themselves, the government stepped in, not to protect the property interests of the Spanish and Mexican grantees under the Treaty [of Guadalupe Hidalgo], but rather to protect its own interest in maintaining control over the public domain. An integral part of the development of capitalism is the role of the state in limiting the accessions of individual monopolists that could hinder the flow and circulation of capital necessary for its continued growth . . . Speculators did, however, perform the important function of dispossessing the many subsistence owners of the land essential for capitalist development of the area."

Article VIII of the Treaty of Guadalupe Hidalgo states in part: "In the said territories, property of every kind, now belonging to Mexicans . . . , shall be inviolably respected." "Inviolably respected" is obviously a very high but vaguely defined standard. By contrast, the Florida Purchase treaty of 1819, as interpreted by the Supreme Court in the case United States v. Percheman stipulated: "the [land] grants shall remain ratified and confirmed to the persons in possession of them, to the same extent, thus conforming exactly to the universally received law of nations." The Percheman decision clearly placed the burden of proof of the land grants' validity and extent on the government rather than the claimant, a policy with which Julian was in complete disagreement. In his article he asserts that his predecessors' policy of not " . . . construing these grants strictly against the grantee . . ." resulted in the ". . . systematic robbery of the government." In the very next paragraph, however, he concedes, "At the date of these old grants, the Spanish and Mexican governments attached little value to their lands. They were abundant and cheap, and granted in the most lavish and extravagant quantities. Leagues, not acres, were the units of measurement . . ." Yet Julian, we shall see, was adamant in opposing the confirmation of large land claims even when they were fully supported by archival evidence.

Moreover, by deleting Article X of the Treaty of Guadalupe Hidalgo, which specifically addressed the disposition of land grants ("All grants of land made by the Mexican government or by the competent authorities, in territories previously appertaining to Mexico, and remaining for the future within the limits of the United States, shall be respected as valid, to the same extent that the same grants would be valid, to the said territories had they remained within the limits of Mexico.") and making the remaining language of the Treaty of Guadalupe Hidalgo regarding land grants vague, Congress intentionally made the Treaty, "non self-executing" and subject to "enabling" legislation. Historian Morris F. Taylor has noted, "The U.S. government was aware that grants in New Mexico and California were much larger . . . than Florida and certainly did not want the precedent of the Percheman case to apply there." It was up to Congress, therefore, to interpret how the terms of the Treaty of Guadalupe Hidalgo were implemented in New Mexico and enact legislation to put its provisions into effect. Congress did this with the 1854 Act that established the Office of the Surveyor General. The 1854 Act stated in part: "It shall be the duty of the Surveyor General . . . to ascertain the origin, nature, character and extent of all land claims under the laws, usages, and customs of Spain and Mexico . .." While this clearly did not go as far as the Percheman decision in protecting claimants rights, it might have established &endash; if it had actually been enforced &endash; a reasonable standard for meeting the government's treaty obligation. Unfortunately, the government, during the era of the Surveyor General (1854-1891), often failed to apply that standard, both out of ignorance of Spanish and Mexican law and personal greed.

Before detailing the "illustrative" examples of his predecessors' "maladministration", Julian lodged one more complaint against them: " . . . the wholesale plunder of the public domain was carried on with still more startling results through extravagant and fraudulent surveys . . . . there was no law providing for the judicial determination of the true boundaries and the deputy surveyor, who was under no particular obligations to ascertain them, was interested in the length of his lines, being paid so many dollars per mile. . . . His controlling purpose was to make the area of the grant as large as possible, and his interpretation of its terms invariably conformed to this idea. Such were the processes by which the titles to these grants were adjudicated, and their boundaries determined. . . . In dealing with this enormous theft of the natural patrimony, I do not speak at random, but on the authority of ascertained facts."

While some grant surveys, as I have already noted, had been exaggerated, Julian, who had a flair both for stirring up the public and for self-aggrandizement, characteristically overstates his case. In point of fact, many preliminary surveys Julian attacked as exaggerated were accurate, or more accurate than Julian's estimations. In at least two land claims that Julian ordered resurveyed and substantially reduced (one by fifty percent and the other by seventy-five percent), he was overruled by the Interior Department and the original surveys restored. Moreover, in several instances he was accused of not giving grant owners proper notice of his intent to resurvey, thereby depriving them of due process.

In the next issue I will begin a detailed examination of some of the precedent setting examples Julian

ANNOUNCEMENTS

• The first unclassified Nuclear Posture Review (NPR) for 2010 was released on April 6 and contains bad news for New Mexico. Anti-nuclear activists have been waiting to see if the Obama administration, which has called for a "nuclear free world" would turn the talk into walk. The NPR has approved funding for the completion of the Chemistry and Metallurgy Research Replacement (CMRR) project at Los Alamos National Laboratory, the $4.5 billion project (already millions of dollars over budget) where plutonium pits will be manufactured. The NPR claims that the CMRR is needed to sustain the nuclear arsenal and for "some modest capacity [that] will be put into place for surge production in the event of a significant geopolitical 'surprise.'" In other words, don't count on a nuclear free world just yet. As Nuclear Watch New Mexico questions in its news release, "Production remains tied to reduction. It's not clear to us how, as stated in the NPR, expanding production infrastructure will allow excess warheads to be retired along with other planned stockpile reductions."

• The University of New Mexico press recently released a book by UNM professor Michael Trujillo that is of interest to norteños. Called Land of Disenchantment: Latino/a Identities and Transformations in Northern New Mexico, Trujillo's book explores the Española Valley's relationship to the hackneyed "Land of Enchantment" narrative used to describe the state. As Trujillo states in his Introduction, "In other words, Española is a place where discourses of tradition and the most painful aspects of modernity seem to intermingle, boil, and saturate the landscape." Chapter One, Remembering and Disremembering, talks about the political and ethnic identity crises that were created when someone cut the foot off the statue of Juan De Oñate at the Oñate Monument and Visitors Center just north of Española in 1997 (or early 1998). Chapter Two remembers the Good Friday pilgrimage in 2000 where two young people were murdered in Chimayó on their way to the Santuario. Chapter Three, A Northern New Mexico "Fix", explores the drug culture in the Española Valley and why it remains so entrenched. Chapter Four, A Time for Bitterness, is a critique of ethnological work that was conducted in the valley by a group of anthropologists in the 1960s, 70s, and 80s. Chapter Five, Appearances Teach, profiles Española Valley embroiderer Policarpio Valencia, whose work referenced traditional genres and pastoral life. Chapter Six, Cuando Hablan los Enamorados, is the story of artist Teresa Archuleta and her writer husband Jim Sagel, two of the valley's most well known creative forces whose work reveals both the positive and negative aspects of their society. Chapter Seven, The Secret of Why God Laughs, is an exploration of writer G. Benito Córdova's book Big Dreams and Dark Secrets in Chimayó, in which the author confronts many of the issues that plague the valley's population. The book is available at bookstores or directly from the University press. To order you can call 800-249-7737.

Hearings on Hazardous Waste Permit for LANL Ongoing

By Kay Matthews

For the first time in 21 years the public has the opportunity to make formal public comments about hazardous waste operations at Los Alamos National Laboratory. Prior to the hearings, the New Mexico Environment Department (NMED), the state agency that issues the permit, LANL, the Department of Energy, and several non-governmental agencies have been negotiating the terms of this landmark agreement before bringing it forward for public review. The public forums began on April 5 and continued through the 12th, then again on the 13th and 14th at Santa Fe Community College; at Ohkay Owingeh Casino on April 13; Pojoaque Pueblo on April 16; Los Alamos, April 23; and April 26 at CNM in Albuquerque. Public comment was taken each day for half an hour.

The permit allows the DOE and LANL to handle one-quarter million pounds of hazardous waste each year during the 10-year permit period. The issues dealt with in the permit include:

• Denial of LANL's permit application for open air burning of hazardous waste. Groups involved in the negotiation of the permit point out that there are alternatives to open air burning, including confined burn facilities that are designed to capture emissions. Unfortunately, just before the hearings began, LANL used the "national security" rationale to publicly object to NMED's denial of open burning, claiming that because the Lab trains National Guard and homeland security staff how to detect the kind of deadly explosives they might find in Afghanistan, Iraq or even within U.S. borders, that training will be impacted if NMED prohibits open burning.

• Requirements for more public participation in clean-up decision making at LANL. The Environmental Protection Agency (EPA) requires early, often, meaningful, and continuous public participation involving clean-up of the 25 dumpsites at LANL. These sites contain "legacy waste", which is waste contaminated by chemicals and radiation. The permit should include requirements for holding regular public meetings, providing documents, and public opportunities for input into decision making processes. This should also be required for the existing Consent Order between NMED and LANL.

• The need for a physical Information Repository in the Española Valley. DOE/LANL is required to establish an Information Repository where permit documents are readily available to the public. NMED is only requiring LANL to create an electronic repository. In order to meet the needs of both urban and rural communities and future generations there needs to be both a physical and electronic version established in the Española Valley before the permit is finalized.

• The improvement of emergency management, planning, preparedness, and response at LANL. Over the past 10 years the DOE Inspector General, the Government Accountability Office, and the Defense Nuclear Facility Safety Board have found serious deficiencies in the DOE/LANL Emergency, Management and Response Division, including failures to provide fire protection.

• A closer look at the seismic hazard on the active volcanic Pajarito Plateau. A 2007 report described a 50 percent increase in the seismic hazard at LANL. A reliable network of seismic instruments (seismometers) than can accurately monitor seismic hazard from ground motions needs to be installed.

• Better groundwater protection at LANL. One of the most critical issues involved in the permit is the monitoring of ground water contamination from waste dumps at LANL. Concerned Citizens for Nuclear Safety brought in two groundwater experts, Dr. Michael Barcelona and George Rice, who testified on Wednesday, April 14 and Thursday, April 15. Dr. Barcelona, a professor of chemistry, spoke about the defective network of monitoring wells at LANL that have been allowing large plumes of contaminated groundwater to migrate many miles below the 40-square mile lab site. Rice, a hydrologist, testified about what is needed for a groundwater well monitoring network to detect LANL pollutants around the waste dumps, including Area G at Technical Area 54. In 2004, using LANL and NMED data, he determined that LANL pollutants could travel a distance of eight lateral miles from a discharge pipe through the geological terrain to springs in the Rio Grande in less than a decade.

•Guarantees by DOE/LANL that there will be adequate funding to clean up contaminated facilities when they are closed. NMED has included requirements in the revised draft permit that DOE/LANL must meet all of the financial assurance requirements for each of the 24 hazardous waste management units.

Although both Concerned Citizens for Nuclear Safety and Citizen Action New Mexico protested the ruling, the Hearing Officer agreed with a motion from DOE/LANL that the public may be cross examined in their public comments at the hearing. Written comments are not subject to cross examination.

CCNS will make every effort to post daily updates on the hearings on its website: ccns@nuclearactive.org.

Lower Rio Grande Adjudication Hearing on April 8

By Kay Matthews

The status conference on the Lower Rio Grande Adjudication (LRG) on April 8 moved the process one step closer to the trial scheduled for March 28, 2011. As we've previously reported (December 2009 and January and March 2010 issues), this long and complicated adjudication will determine federal water rights on the Rio Grande with regard to Elephant Butte Irrigation District (EBID), whether those rights were fraudulently acquired from the Rio Grande Project, and the state of New Mexico's right to make offers of judgment and issue permits.

There are four Stream System Issues being heard, or issues that affect the interests of all or most of the parties to the adjudication. The first three issues deal with Consumptive Irrigation Requirements/Farm Delivery Requirements, EBID groundwater claims, and domestic wells. The most recently added fourth issue, Stream System Issue SS-97 104, gets at the heart of Scott Boyd's claim that the federal government illegally seized his great-grandfather's Rio Grande Company to construct the Elephant Butte Dam to supply irrigation water to LRG farmers and that those water rights have to be quantified and validated as part of this process. Under Stream System 104, the determination of groundwater rights that were part of the Rio Grande Project will be connected to surface water rights as well.

The April 8 hearing was supposedly the deadline for the federal government and the state to delineate their water rights claims. Instead, lawyers for the governmental entities involved &endash; the federal government, the state of New Mexico, EBID, and El Paso County Water Improvement District &endash; who would like to avoid dealing with Stream System Issue SS-97-104, proposed mediation among themselves, excluding Boyd's estate and the LRG farmers who have subsequently joined the suit. The Court recognized the mediation request and continued stay of the trial but imposed stringent time limits for a declaration of water rights. The delay will give the other parties time to better prepare their arguments for the March 28-April 15 trial. Scott Boyd and some of the LRG farmers have been negotiating with a natural resources law firm based in Arizona, with offices in Santa Fe, to represent them in this case. Their previous attorney was allowed only to argue for their motion to force the federal government to prove its claim, and they now look forward to the opportunity to prove their claims in court.

The Court posts Monthly reports on its website, http://www.nmcourts.gov/watercases/lriogrande.html.