La Jicarita News - Community Advocacy for Northern New Mexico

A wake-up call; that's how some are describing it. The environmental catastrophe unfolding in the Gulf of Mexico caused by the British Petroleum (BP) oil well blowout has raised the awareness of many. The general public, previously uneducated about the hazards of offshore oil and gas drilling, is now becoming more informed.

Photo by Arielle Hawney

A view of the iconic Hermit's Peak from the land on the east side of Highway 518 where more than 27,000 acres have been leased to the Oil & Gas Industry

Here at home in northern New Mexico, onshore drilling is also getting people's attention, most recently in Mora and San Miguel counties. In fact, it's been on the radar screen of community advocates in this part of the state for several years now, and the view on that screen is widening as other folks are becoming educated and active. Residents and elected officials alike, at the municipal and county levels in northern New Mexico, seem to be gaining awareness of the potentially devastating impacts of the Oil and Gas Industry on our region. Though no drilling is currently underway in the two counties, tens of thousands of acres of oil and gas leases have already been signed, including in the Las Vegas Basin, which reaches across both Mora and San Miguel counties.

Mineral rights are being turned over to the Oil and Gas Industry on both private and public lands. In fact, New Mexico State Land Commissioner Patrick Lyons, whose term expires at the end of this year, is holding monthly oil and gas lease sales on state trust lands in counties throughout New Mexico, including Mora (www.nmstatelands.org). For some counties, like San Juan in the northwestern part of the state, the environmental damage by the extractive industries has been apparent for some time, and the destruction is, unfortunately, ongoing. But for those counties mostly untouched by oil and gas drilling, such as Mora and San Miguel, a quickening of concern among county residents is currently underway.

At its January 2010 meeting, the San Miguel County Commission voted unanimously to enact a one-year moratorium (SMC Resolution No. 12-08-09-OIL&GAS) on oil and gas drilling and exploration to give it time to strengthen county-level regulations around energy and mineral extraction. Subsequently, in April 2010, the Commission formed an Oil and Gas Ordinance Task Force to help shape new regulations. Seen by some as a positive step toward eventually reigning in an already too loosely regulated industry, the formation of the task force was not without controversy, even though it had not yet had a meeting. Community members felt that the initial membership was lopsided toward industry and complained about potential conflicts of interest among some task force members. As a result, San Miguel County sent out disclosure forms to the members, and that action prompted a reshuffling of the original task force. On June 28th the County Commission voted on its final appointments, a membership now seen as slightly less industry-heavy. The newly formed 10-member group is anticipated to begin meeting soon. County Commission Chair, David Salazar, has assured county residents that the task force meetings will be open to the public.

Around this same time, movement was occurring on the municipal level. On May 19, 2010, the Las Vegas City Council, after holding two public hearings on the issue, unanimously voted in favor of Ordinance 10-16, placing a two-year moratorium "on the approval of conditional use or other permits for Oil, Gas and Geothermal Drilling, Exploration and Extraction within the City of Las Vegas city limits, San Miguel County, New Mexico." Of those who testified at the public hearings, no one spoke against the moratorium; all were in favor. One of those who went on-the-record in support of Ordinance 10-16, Calvin Tillman, is not a resident of Las Vegas, but his input (via a written statement sent to Las Vegas Mayor Alfonso Ortiz) was welcomed nonetheless. Tillman is the mayor of Dish, Texas, and his small community has been decimated by natural gas drilling. In his letter, made public at the hearing, Mayor Tillman said he supports the moratorium and believes that, for Dish, "the moratorium was a crucial element in revising our Ordinance to better protect the citizens and environment within our town." Mayor Ortiz, who initiated the Las Vegas moratorium ordinance, is also the San Miguel County Treasurer. He noted that the income generated from drilling activities would never be able to cover the cost of damages. He added, "We can't be spoiling our environment. It's not good for Las Vegas or San Miguel County" (Las Vegas Optic, 12 May 2010).

While some elected officials are being pro-active, it really has been the grassroots effort of the citizens that has led the charge thus far. In Mora County residents have been active around the oil and gas issue for several years. Discussions about a moratorium are ongoing, as is getting an ordinance passed that is in line with the Mora County Comprehensive Land Use Plan (CLUP). Community advocates are saying they want to see the land, water, and culture protected, and that land use in the county is compatible with the rich agricultural and farming history of the area. Some residents are calling for an ordinance similar to that of Santa Fe County. In December of 2008, due to pressure and a lot of hard work by community members, Santa Fe County passed one of the strictest oil and gas ordinances in the country. They could do this because New Mexico does not prohibit counties from enacting strict regulations to control how the oil and gas industry operates within their borders. Santa Fe's ordinance (http://www.santafecounty.org/oilandgas/) establishes requirements at the county level that are not currently in place at the state and federal levels. Due to heavy lobbying by the industry, as well as severe understaffing of regulatory agencies, there is minimal government oversight. The oil and gas industry is even exempted from portions of the Clean Air Act, the Safe Water Drinking Act, and other laws that were designed to protect us at the federal level. So ordinances enacted at the county level can provide protections not otherwise available. And this may still not be enough.

It appears that drilling can occur without county consent. For example, a well was drilled in San Miguel County four years ago, apparently without the knowledge of county officials. According to the Oil Conservation Division (OCD), operating under the State of New Mexico's Energy Minerals and Natural Resources Department, Cuervo Exploration, LLC drilled in southeast San Miguel County in 2006 and capped the well in 2008. The permit was approved by the OCD on February 6th, 2006.

Oil and gas well drilling can also occur without the permission of the landowner. Many surface property owners in New Mexico do not own their mineral rights. This concept, known as "split estate", means that the landowner does not own the minerals that lie underneath his or her land, including oil and gas. Mineral rights generally hold greater legal weight than surface rights. This is unfortunate, as it means that drilling on your land can be done without your permission if you are unable to reach an agreement with the mineral rights owner. In too many situations this means that you can essentially lose some of your private property rights. For example, natural gas wells are permitted to be within 100 feet of your home. A spider web of gas pipelines can be laid through your field of crops, and you can't say "no." Even if you own your mineral rights and choose not to sell or lease them, you still might not be able to stop the drilling on your land. In New Mexico, including Mora and San Miguel counties, many oil and gas leases contain a clause called "forced pooling." This means that by means of horizontal drilling, oil and gas extraction on adjacent leased land can access the oil or gas on your land. Of course, you can then expect money for the resources taken from underneath your feet, but you can't say "no" to the taking of those resources in the first place.

What are the risks associated with drilling? There are many. The oil and gas industry sets up a boom-and-bust economy and comes with many environmental hazards. The process known as hydraulic fracturing, or fracking, is used in the well drilling process. A toxic stew of chemicals, along with water and sand, are injected into the earth. Under high pressure, cracks in the shale are forced open so the oil or gas can be released. Fracking is an unpredictable process that can be challenging to control. Some of those cracks run the risk of reaching and contaminating water supplies such as ground water, aquifers, rivers, streams, and even drinking water. The original fracking fluid formula was developed by Halliburton in the 1940s. It is considered proprietary or secret. Many of these chemicals that we know are going to be used (e.g., benzene, formaldehyde, xylene, naphthalene, and methanol) are toxic, carcinogenic, and hazardous to humans, livestock, wildlife, and the environment. And studies show that 30-70 percent of the fracking solution still remains in the ground after drilling is completed.

Water use is another significant issue. To drill just one oil or gas well, somewhere between 1 to 8 million gallons of water is required. If you look at the average of 2.6 to 5.5 million gallons of water per well, this amounts to 8 to 17 acre-feet of water. And that's just one well being fracked one time. Depending on the amount of acreage, there can be hundreds or thousands of wells. And each well can be fracked multiple times. This is a heavy water-use industry, and that water has to come from somewhere. Water is a precious resource of limited supply that can't afford to be wasted or contaminated.

Offshore drilling is ruining entire ecosystems, people's lives, and much more. Onshore drilling holds the same destructive potential. The clear winners are the oil and gas companies that are able to amass large profits by treating local communities as a cost of doing business. Property values plummet as roads, wells pads, pipelines and pits fill the landscape. Skill positions in the industry are usually filled by labor from outside the area; most local job growth will be for low-wage workers. While counties will benefit from increased tax revenue, the cost of extending services to meet infrastructure needs can skyrocket. And when the gas and oil are depleted, the industry moves on and the community is left with the cumulative impacts. The wake-up call is happening here and now in New Mexico. If you would like more information regarding these issues in Mora and San Miguel counties, please contact the Las Vegas Peace & Justice Center (http://lvpeacecenter.org/) at lvpeacecenter@desertgate.com or (505) 425-3840.

Surveyor General George W. Julian: A Summary of Findings

By Mark Schiller

In the course of the research I conducted for the New Mexico Historical Records Advisory Board into the career of Surveyor General George W. Julian, I summarized and critiqued sixteen land claims Julian examined that had previously been recommended for confirmation by his predecessors. Of those sixteen (Cañon de Pedernales, Las Encinas, Cañada Ancha, Cañon de Chama, Las Vegas, San Miguel del Vado, Estancia, Ignacio Chavez, Socorro, Bernardo Miera y Pacheco and Padilla, Cañada de Cochiti, San Joaquin del Nacimiento, José Sutton, Arroyo de Lorenzo, Vallecito de Lovato, and Bernabé M. Montaño) Julian recommended the total rejection of eleven (Cañon de Pedernales, Las Encinas, Cañada Ancha, Estancia, Ignacio Chavez, Bernardo Miera y Pacheco and Padilla, Cañada de Cochiti, San Joaquin del Nacimiento, José Sutton, Arroyo de Lorenzo, and Vallecito de Lovato) and drastically and unwarrantably reduced four community land grants (Cañon de Chama, Las Vegas, San Miguel del Vado, and Socorro) to their agricultural and residential allotments only. Of the eleven he rejected outright, I believe I demonstrated that he was completely correct only in the case of the José Sutton. Regarding two of the other grants he recommended for rejection, Cañada Ancha, and Miera y Pacheco and Padilla, I agreed with Julian that their preliminary surveys had been exaggerated but demonstrated that they were otherwise valid claims, substantially larger than Julian allowed. As for Julian divesting four community grants of their common lands, I believe I demonstrated that neither Spanish nor Mexican law or customary usage supported that theory. Finally, there is, as Julian termed it, the "peculiar" Bernabé M. Montaño claim that I believe Julian was partially correct in assessing: the preliminary survey was exaggerated as he asserted, but his reasons for supporting the confirmation of the more limited claim, which included the common lands of the grant, completely contradicted his previously advanced theory that title to the unalloted common lands within a community grant did not vest in the community. This, in fact, was the rational he had used to justify the drastic reduction of the Cañon de Chama, Las Vegas, San Miguel del Vado, and Socorro claims.

By this accounting, Julian was completely correct in only 12.5 percent of the cases and partially correct in 19 percent. Bearing in mind that Julian felt these were the most egregious examples of several dozen claims previously recommended for confirmation by his predecessors, which he reexamined, it is apparent his denunciations of these claims was factually biased and rhetorically exaggerated. Ironically, Julian had famously declared that 90 percent of all land entries in New Mexico were fraudulent.

These statistics also contradict historian Victor Westphall's assertion, quoted at the beginning of the article, that Julian "exhibited an understanding of the Spanish system of land tenure." In fact, he neither possessed a sound understanding of Spanish and Mexican land law and traditional usage, nor did he make an effort to acquire one. He relied entirely on his own biased and unsubstantiated interpretations of those laws and usages and the equally biased interpretations of the American courts that preceded his tenure as surveyor general.

All of this, of course, is impossible to reconcile with Julian's history of portraying himself as the only honest and rational man in a den of thieves. As one of the champions of the Homestead Act he never missed an opportunity to promote himself as a crusader for the "landless poor," while politically he tried to demonstrate that the Cleveland administration was making a sincere effort to reform the corrupt land policies of the previous Republican administrations, neither of which was true. As Julian's biographer Patrick Riddleberger has pointed out, "[For Julian] stimulation often came more from hatred of his enemies, real or supposed, than from social and economic needs." He was constantly tilting at windmills, a malicious and decidedly unchivalrous Don Quixote.

Most importantly, Julian failed to acknowledge or even recognize that the policy he instituted of "construing these grants strictly against the grantee and devolving upon him the burden of establishing his claim by affirmative proofs," thus making the adjudication process adversarial, had the opposite effect he claimed he intended. It drove legitimate Mexican claimants (illiterate, Spanish speaking, subsistence farmers and ranchers) into the clutches of predatory lawyers and land speculators who perpetrated the fraud, corruption, and monopolization of the public domain he so self-righteously denounced. It also violated the terms of the Treaty of Guadalupe Hidalgo that specifically stated the claimants would not be subject to any charge whatsoever in pursuing their claims.

But Julian was clearly not concerned about protecting the rights of legitimate Mexican claimants, who he believed were an inferior race like the emancipated slaves he had outspokenly demanded be freed but then sought to colonize in Haiti after the Civil War rather than naturalize as citizens. In personal journal entries from his New Mexico years Julian referred to the "stagnation of the natives" and the "prevailing tendency here to degenerate into barbarism." He referred to New Mexican homes as "the piles of mud in which the people of Santa Fe are domiciled" and dismissed the entire Territory suggesting, "There is no future for this country [New Mexico] in sight, and nothing in fact to keep any civilized man here but the climate." His contempt for the legitimate owners of these grants was palpable.

Rather than concentrating his efforts on implementing the terms of the Treaty of Guadalupe Hidalgo and the Act of 1854 that defined the duties of his office, he obviously felt his job was to prepare the way for Anglo settlement and resource exploitation. He concluded the Land Stealing article by saying, "Small land-holdings, thrifty tillage, and compact settlement will supersede great monopolies, slovenly agriculture and industrial stagnation. The influx of an intelligent and enterprising [Anglo capitalist] population will insure the development of the vast mineral wealth of the Territory, as well as the settlement of her lands . . . ."

Even in this purpose, however, he was unrealistic and ineffectual. As historian R. Hal Williams has documented, " 'the landless poor' made little progress under Julian's tutelage in New Mexico. The census reports of 1890 and 1900 reveal the average size of New Mexico farms actually increased significantly during this period, and the territory's land system, contrary to Julian's intentions, continued to be dominated by large agricultural units." To give an even more graphic accounting of the disposition of the public domain in New Mexico during this period the reader should bear in mind that through 1891 only 622,684 acres had been granted in New Mexico under all the public lands acts including the Homestead Act, and through the entire tenure of the Court of Private Land Claims, which adjudicated 282 land claims including over 20,000,000 acres only 1,934,986 acres were confirmed. Compare that with the 3,590,281 acres granted in New Mexico to the Atlantic and Pacific Railroad alone and you have some idea of the effect of Julian's efforts to implement a more equitable public lands policy as well as whose interests the government really represented. Moreover, the government's domestic imperialism was not limited to the dispossession of Mexicans. During this same period (1887) Congress, with the full support of the Cleveland administration, implemented the Dawes Act that over the course of just thirteen years (1887-1900) reduced Native American land holdings from 140 million acres to just 78 million acres and made the surplus available for Anglo settlement and capitalist exploitation.

The question remains: Was Julian a colonial bureaucrat? I believe the answer is he was too self-absorbed, delusional, and vindictive to consistently represent any ideology but his own perverse form of Calvinist Jeffersonianism. His bombastic denunciations of legitimate claims and his unsubstantiated legal theories regarding Spanish and Mexican law and usage did, however, pave the way for United States Attorney Matthew G. Reynolds to continue Julian's crusade when Congress created the Court of Private Land Claims in 1891 and was, as I have previously noted, an uncompromising colonial bureaucrat who did not hesitate to resort to legal technicalities and chicanery to defeat or reduce all claims that came before that Court and the Supreme Court.

With Cleveland's defeat in the election of 1888 Julian's patronage job was abruptly terminated. By the end of his tenure as surveyor general Julian said, "the way [was] open at last for a final escape from this God-forsaken land." By the same token, the Territory's leading paper, The Daily New Mexican, declared, "Everybody wore a smile this morning . . . all on the account of the news of Julian's removal."

ANNOUNCEMENTS

In mid-June Carson National Forest released the Environment Assessment (EA) for Travel Management on the Canjilon, El Rito, and Tres Piedras ranger districts (the EA for the Camino Real Ranger District has yet to be released). In response to letters and comments received during the scoping period in 2009, the EA's preferred alternative is Alternative 1, Modified Proposed Action. Changes to the original proposal were based on two issues raised by the public: one, that there should be more road, corridor, and seasonal closures to protect wildlife and habitat, watersheds, and heritage resources; and two, certain proposed motor vehicle closures would negatively impact traditional uses, especially firewood gathering, dispersed camping, and retrieving big game. At the one extreme regarding more road closures, a letter signed by eight different parties suggested an alternative that would close over 70 percent of the existing transportation system on this west side of the Carson.

In response to issue one, the Forest Service slightly amended the proposed Alternative 1 by extending winter closures to the end of April and adding an elk calving closure along Forest Road 80 on the Tres Piedras Ranger District (northern goshawk concerns are addressed in Alternative 2). In response to issue two, the FS modified Alternative 1 to provide more roads that can be used for any purpose, including the collection of forest products by motor vehicle as well as more corridors for dispersed camping and big game retrieval.

After a thirty day comment period the Carson Forest Supervisor will issue a Record of Decision, which can be appealed by anyone who commented during the initial scoping period or after the release of the EA.

Quivira Coalition Annual Conference

"The Carbon Ranch: Using Food and Stewardship to Build Soil and Fight Climate Change," the Quivira Coalition's 9th Annual Conference, will be held Wednesday-Friday, November 10-12, 2010 at the Embassy Suites Hotel in Albuquerque. According to the Quivira Coalition brochure, "the only possibility of large scale removal of greenhouse gases from the atmosphere is through plant photosynthesis and other land-based carbon sequestration activities. Strategies include enriching soil carbon, farming with perennials, employing climate-friendly livestock practices, conserving natural habitat, restoring degraded watersheds and rangelands, and producing local food. Many of these strategies have been demonstrated to be both practical and profitable. A carbon ranch bundles them into an economic whole with the aim of creating climate-friendly landscapes that are healthy ecologically and are the source of healthy food."

The conference has invited "carbon pioneers" to talk about how to achieve these practices. For more information regarding the conference or to register online go to: www.quiviracoalition.org.

Aamodt Update

The Joe M. Stell Ombudsman Program recently released a report on the outreach to the Pojoaque/Tesuque/Nambe/El Rancho communities about the Aamodt settlement it conducted in February and March (see La Jicarita, March 2010). The County of Santa Fe sponsored and paid for the meetings after a survey revealed that the majority of water rights holders in the affected area had a "negative" opinion regarding the terms of the Aamodt settlement.

The report summarizes the general concerns about the settlement as follows:

1. How can I sign an agreement if I do not know the terms, such as how much the water delivery system will cost me each month, whether the money will be there to build the system, whether the studies will show that it is feasible, and whether the imported water will be available? There are too may unknowns for me to feel comfortable.

2. I do not want to bind my heirs or puchasers by my decisions.

3. I want the Settlement to guarantee that everyone will be subject to the same rules.

4. We want the congressional delegation to come and talk to the community.

5. I do not like that the negotiations happened behind closed door.

6. Historic realities have not been addressed.

7. Basic fairness was not addressed in the Settlement.

8. The federal court will not be able to enforce the Settlement vis-a-vis the Pueblos.

These reflect many of the concerns that were raised for years by the Pojoaque Basin Water Alliance, a coalition of valley residents whose voices were often ignored during the promulgation of the settlement, which has now been submitted to Congress for approval.

Lower Rio Grande Adjudication Update

Things have taken an interesting turn in the Lower Rio Grande Adjudication being heard by Judge Valentine in southern New Mexico. It seems that the federal government, which is being asked to prove its water rights associated with the Elephant Butte Irrigation District (EBID), neglected to file a valid application for Application 8, or Permit 8, with the Territory of New Mexico, in 1906, to acquire and operate the Rio Grande Project. The Project, originally called the Rio Grande Dam and Irrigation Company and owned by Nathan Boyd, who acquired farmers' water rights for the irrigation project, was subsequently taken over by the Bureau of Reclamation in a "forfeiture" proceeding and became the EBID. Apparently the Office of the State Engineer (OSE) has come up empty handed after being ordered by the court to produce Permit 8.

Whether the absence of a Permit will be viewed as a mere technicality or a substantive issue remains to be seen, but the court will move forward with hearings regarding the stream issues. If the federal government did not legally acquire Rio Grande Project water rights, Stream Issue 104, the adjudication of these federal rights may now involve the determination of prior appropriation rights and how they will be managed by the OSE. Any changes in priority dates with regard to these rights could potentially impact both water rights allocations and transfers throughout the Rio Grande. The next status conference is set for August.

Chemistry and Metallurgy Research Building Replacement Update

Concerned Citizens for Nuclear Safety (CCNS) recently wrote a letter to the National Nuclear Security Administration, which manages all the national laboratories that deal with weapons development and production, to request that the Department of Energy prepare a supplemental Environmental Impact Statement (EIS), in accordance with National Environmental Policy Act regulations, for the Chemical and Metallurgy Research Building Replacement (CMRR) at Los Alamos National Laboratory. "Since the final CMRR EIS was released in 2003 there have been substantial changes to the proposal and significant new circumstances or information relevant to environment concerns that require a supplemental EIS."

The previous CMRR proposal was for the construction of a replacement building for the existing facility, but the current proposal includes an additional 42,000 square-foot building that will support increased plutonium pit production capability at LANL. More significantly, the cost estimate analyzed in the 2003 EIS was $600 million for the entire project. That cost is now estimated to be $4.5 billion, a more than seven-fold increase over a seven year period. Several other concerns raised in the letter that were not analyzed in the 2003 EIS are plans to excavate 225,000 cubic yards of fragile volcanic ash located under the construction site and replace it with concrete, and if the 1,200 acre feet of San Juan/Chama water that is going to be diverted by the DOE and County of Los Alamos will be used for construction and operation of the CMRR project. To sign onto this letter go to the CCNS website:www.nuclearactive.org.

Santa Fe's Amigos del Parque Celebrates Ninth Anniversary

By David Correia

A large crowd of volunteers and supporters came out to De Vargas Park in Santa Fe on June 26th to celebrate the ninth anniversary of Amigos del Parque, a group made up entirely of volunteers who for nearly a decade have provided daily free breakfasts to day laborers in the park. As co-founder Mara Taub was quick to point out, Los Amigos is "not a breakfast program but a human rights program that includes breakfast." The group was founded in 2001 when Taub and co-founder Alicia de Burrola decided to do something for the scores of workers who congregate each day in the park. For nearly a decade the group has grown to more than twenty volunteers who have distributed work gloves and winter coats along with coffee and breakfast rolls to the laborers. Nearly all of the workers, de Burrola pointed out, are migrants from Mexico and various Central American countries. "Few people," noted de Burrola, "realize the sense of humanity and desperation among migrants in Santa Fe. So many have died crossing the border." De Burrola was born and raised in Juarez and saw first hand how the true costs of migration were paid by the migrants themselves, a fact ignored, Taub pointed out, in current debates about immigration.

The Arizona SB 1070 law, for example, explicitly targets day laborers. The law bans day laborers or those soliciting their work from blocking the street. The wording of the law serves as one example of the way anti-immigration groups use obfuscating language to hide prejudice and discrimination behind calls for "public safety." In the past two years, the work of Los Amigos has occasionally been attacked in letters to the Santa Fe New Mexican. Using the same tortured logic evident in SB 1070, the Santa Fe Chamber of Commerce President wrote a Guest Editorial last summer calling for Santa Fe to remove day laborers from De Vargas Park because the presence of so many workers intimidated the tourists as they walked between the Railrunner station and the downtown Plaza.

Despite the opposition, the anniversary celebration showed broad community support for Los Amigos. More than two dozen volunteers joined scores of supporters, including Santa Fe Mayor David Coss, and nearly sixty day laborers to celebrate the anniversary breakfast with a Mariachi band and an omelet station. The breakfast has become a daily event that workers in the park value. Drinking a cup of coffee and eating a slice of melon, Ismael, a recent arrival from Oaxaca, talked about how important Los Amigos is to the workers in the park. "The people here in the park are grateful for the good food." He and his friend Pedro recently came back to New Mexico from a stay in Arizona. "There's nothing like this in Arizona. They don't help, they just call the police," he said.

Photo by Jakob Schiller