Pueblo Design
 La Jicarita

A community advocacy newspaper for northern New Mexico

Box 6 El Valle Route, Chamisal, NM 87521

Volume XV

October/November 2010

Number X

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Taos County Commission Approves Public Welfare Ordinance By Kay Matthews  

Editorial: Midterm Dysfunction By Kay Matthews

Carson National Forest Takes a More Conservative Approach to Broadcast Burn Near El Valle By Kay Matthews


Los Alamos National Laboratory: Never Ending Vigilance By Kay Matthews

Taos County Commission Approves Public Welfare Ordinance

By Kay Matthews

Finally, the good guys and gals won. On Tuesday, October 26, the Taos County Commission approved a Public Welfare Ordinance that establishes "an advisory and informational committee," comprised of volunteers from throughout the county, that will analyze and recommend to the commissioners whether proposed water transfers within or from the county are consistent with, or contrary to, public welfare requirements.

Taos County Commissioners celebrating passage of the Ordinance with some of their supporters, left to right: Commissioner Nick Jaramillo; Butchie Denver, Regional Water Planning Steering Committee member; Charlie Gonzales, former Commissioner; Commissioner Andrew Chavez; Chairman Dan Barrone; Bill Whaley, Taos Friction publisher; Commissioner Larry Sanchez

The ordinance passed unanimously despite a last minute attempt by officers of the Taos Valley Acequia Association to derail it. Palemon Martinez, longtime president of the board of the TVAA, repeated objections that he has raised over the long history of the ordinance's development: that it is overreaching, that it may infringe upon acequia commissioners' rights to deny or approve transfers, and that it may conflict with the terms of the Abeyta (Taos Pueblo Water Rights) settlement (which currently is on hold in a congressional subcommittee). He also claimed, once again, that there hadn't been enough public input. The commissioners were quick to address his objections by pointing out that the ordinance will work to protect all county stakeholders and water resources, not just acequias and mutual domestics within the TVAA, and allow the county to make informed protests of proposed water transfers that are not in the best interest of the public.

Simeon Herskovits, who was instrumental in drafting the original Public Welfare Statement and Implementation Committee that was part of the Taos Regional Water Plan, and who was subsequently hired by the county to help draft the ordinance, told Martinez that it does not impact the rights of either the Abeyta parties or the acequias and that Martinez's input, along with that of other county stakeholders, had been solicited since July when the ordinance was published and presented to the commission.

Taos Regional Water Plan

Martinez's claim of "lack of public participation" is particularly egregious considering his involvement in the long and tortuous journey this ordinance took to come to fruition. La Jicarita News has followed the issue of public welfare with regard to water transfers since the State Water Plan called for the promulgation of Regional Water Plans that would include local definitions of just what exactly constitutes public welfare. While public welfare is one of the three criteria used by the Office of the State Engineer (OSE) in determining whether a transfer application should be approved, there is no case law that defines what public welfare is, which is why the regional plans were mandated to help define that concept.

And that is exactly what the Taos Regional Water Plan did. The stakeholders involved in its development came up with a Public Welfare Statement that laid out the criteria upon which public welfare is based &endash; cultural protection, agrarian character, ecological health, long-term economic development potential, recreational tourism, public education, water supply management, conservation, and conjunctive management. They then went a step further and developed the idea of a Local Public Welfare and Implementation Committee that would evaluate the potential impacts of proposed water transfers on the public welfare and advise the OSE and local government entities as to whether these transfers should be protested. While there is, of course, no legal requirement that the OSE would agree to the findings of the local review board, it made sense that a local board would be better informed as to the merits of a proposed transfer and that the OSE would take the board's recommendation seriously. The steering committee took these ideas on the road, presented them to the county communities, and received significant positive feedback.

The Takeover

Once the powers that be got wind of the Implementation Committee all hell broke loose. Those who complained the loudest were parties to the Abeyta settlement, whose representatives had only intermittently attended meetings of the Taos Regional Water Plan steering committee (although Palemon Martinez had managed to attend many water plan meetings as well as the Abeyta settlement meetings). The bottom line for all of them &endash; the TVAA, El Prado Water and Sanitation District, the town of Taos, Taos Pueblo &endash; was that there be no oversight or restrictions on buying and selling water rights required to implement the settlement. The other nay sayers &endash; real estate interests, Taos Ski Valley, El Valle Water and Sanitation District &endash; want no restrictions on their ability to move water to the "highest and best uses," i.e., growth and development. They tried to disguise these concerns with the claim that the Implementation Committee was contrary to state law and was duplicating the process already overseen by the OSE. It seemed like a tempest in a tea pot: the Implementation Committee could only function in an advisory role, and ultimately, any protested water transfer applications would be decided, as always, by the OSE.

The lawyers for these Abeyta parties and other interests seemed to be raising three fundamental arguments: 1) water is a private property right, not a public resource that can be regulated for the public good; 2) economic development has precedence over other water management concerns; and 3) approval of the Taos Regional Water Plan Public Welfare Statement would prevent successful settlement of the Abetya adjudication.

Ultimately, these special interests prevailed, and the Interstate Stream Commission refused to approve the Taos Regional Water Plan, which included the Public Welfare Statement, until all the stakeholders agreed to sign on. The Plan was then hijacked by the powers that be and the members of the Public Welfare Committee, who drafted the Public Welfare Statement, were kicked out of any further negotiations. The plan was eventually moved forward without the Public Welfare Statement.

Taos County to the Rescue

The county had always supported the inclusion of the Public Welfare Statement and Implementation Committee and decided to convert the concept into an ordinance. The folks from the Public Welfare subcommittee who had worked so hard to keep the concept alive in the Regional Water Plan continued to help Herskovits draft the ordinance that passed the commission on October 26 (particularly Butchie Denver).

The county's ordinance is the result of many revisions made by many folks interested in protecting the area's most precious resource. The heart of the document is the Advisory and Informational Committee on Public Welfare and Conservation. The committee will be composed of nine members, which should include, if possible, a representative from each of the four subregions defined in the Taos Regional Water Plan, "local residents who are knowledgeable about the surface and groundwater resources and issues in their respective subregions and Taos County as a whole, and who are committed to performing their duties in a nonpartisan, nonpolitical, unbiased manner."

The ordinance stipulates that within two weeks of its acceptance a notice will be published in The Taos News inviting all local residents and stakeholders, which includes municipalities, acequia associations, mutual domestic water associations, and other water interests who wish to be members of the committee to submit a Letter of Interest to the County Manager, Adam Baker, within 30 days after publication of the notice.

The County Commissioners will appoint a panel of five people "who understand the County's water concerns" to review each Letter of Interest and provide the commissioners with a list that ranks those interested. The panel will be chaired by the County Manager, and the other four members of the panel will be drawn from the Regional Water Plan Steering Committee, at least two of whom were members of the Public Welfare subcommittee. From the list provided by the panel each commissioner may choose one person from his district to serve on the committee, or if a more qualified person from another district is the better choice, the commissioner may choose that person instead. The commission as a whole will choose the four remaining committee members from the list. Once the committee is selected it will draft a set a bylaws and procedural rules to be approved by the County Commission.

The ordinance stipulates that any transfer application within or from the county be submitted to the Taos County Clerk at the same time it is submitted to the Office of the State Engineer. During the three week notice period provided for by state law the committee will accept comment from the applicant and any interested member of the public concerning the potential public welfare impacts of the proposed transfer. As soon as the committee has made its findings and recommendations it will transmit them to the County Commission, the applicant, and the public. If the committee finds the transfer is inconsistent with the public welfare the commission will give that finding "great weight" in deciding whether to protest the transfer.

If and when the Aamodt settlement (Pojoaque, San Ildefonso, Tesuque, and Nambe Pueblo Water Rights) gets funded by Congress, Santa Fe County plans to submit an application for the remaining Top of the World water rights from northern Taos County to meet the terms of the settlement. The passage of the Taos County Public Welfare Ordinance is a timely reminder that this time around our water will not be leaving its area of origin without a fight.

Editorial: Midterm Dysfunction

By Kay Matthews

In his book Thus Spoke Zarathustra Friedrich Nietzsche referred to the "masses" as the "Motley Cow," meaning the chaotic herd, those who do the bidding of the powerful elites. The American founding fathers set up our republican government with the Electoral College, not trusting the "masses" to have the education or intelligence necessary for an informed vote.

These, of course, are blatant beliefs that the world is made up of "elites" and "masses" and there's not much, or should there be, that can be done about it. On the other hand are the philosophers, intellectuals, and activists, who, beginning with the Enlightenment up to present day, struggle with how to deal with this great divide, both theoretically and practically (public education, labor laws, Social Security, revolution). Values derived from Karl Marx's famous axiom, "For those according to their needs, from those according to their abilities," underlie the belief that there can, and should be, a more egalitarian and just society.

During the Bush II years the pace of the debate picked up as the divide widened in this country, both economically and culturally. Many books were written by those wondering why the electorate voted in so many numbers against their self-interest. In his 2004 book What's the Matter with Kansas? Thomas Frank postulates that the Republicans exploited cultural issues such as abortion and gay marriage to direct anger at the so-called Democratic elites and deflect attention from the many economic issues that were affecting the lives of middle class, and particularly, mid-western citizens. While his book created controversy among those trying to address the same issue, particularly in terms of class, Frank did predict the growing divide between moderate and conservative Republicans that is now manifest in what is known as the Tea Party.

After the re-election of Bush the Republican elites quickly ignored cultural issues and focused their attention on the consolidation of wealth and power through tax cuts and deregulation. Nietzche's Motley Cow description certainly reflects Republican strategies: Motley refers to Western modernity and the ability of the elites to whip up mass hysteria in the Cow, or "masses," i.e., the "war on terror," "raising taxes is socialism," "keep government's hands off Medicare and out of our lives," or, in other words, all the economic policies that continue to increase profits for the military industrial complex, keep wealth in the hands of the top one percent of society, and allow the financial sector to continue its global reach without oversight or limits.

The Obama administration played right along with this scenario with its bailout of Wall Street, enacting the same economic policies of the Bushies, directed by Larry Summers and all his financial sector buddies who were complicit in the collapse. Unlike Franklin Roosevelt, who came into office during the Great Depression and wrestled the New Deal policies through Congress that are largely responsible for the comfort and well being of many of the Tea Party ranters, Obama has been largely unable and unwilling to institute substantive change of any lasting consequence (middle and lower income people still won't be able to afford health insurance under the health care reform act) during an economic recession that the power elite refuse to call a depression.

As a result, in the mid-term elections of November 2, 2010 the Republican elites raised their behind the scenes machinations to a whole new level of rhetoric. In an article my son Max Schiller wrote for his college newspaper he talked about watching one of the gubernatorial debates in New Mexico when Susana Martinez accused Diane Denish of losing 55,000 jobs while she was lieutenant governor. He asked, "Are there people sitting on their couches at home cursing Diane Denish for losing their job at the local industrial plant? Do people not realize that the Lt. Governor has little influence on policy, particularly regarding economic vitality that extends well beyond the confines of petty New Mexico politics?"

But maybe the viciousness of the 2010 campaigns has also revealed that some folks aren't as gullible as the Karl Roves of the world would believe, or are ready to abandon the electoral process altogether. As I talked with my neighbors in the small communities of northern New Mexico, these are the responses I heard, from Democrats and Republicans. A man from up the road told me, "Glad I can start watching TV again. Doesn't matter which party won. They're all crooks." A stalwart Democrat in her eighties said, "I'm sorry Diane Denish didn't win, she's such a nice, thoughtful woman. But after this election I almost think it's not worth voting anymore." And from another neighbor, a longtime Republican who came to that party because his father filled a vacant precinct chair years ago that happened to be Republican, "So, are we going to lose our health insurance with Susana Martinez (he, along with many other self-employed folks in New Mexico, are covered by a state-sponsored program that helps those who make too much money to qualify for Medicaid but too little to buy private insurance)? I guess that means we're going to die sooner rather than later."

Carson National Forest Takes a More Conservative Approach to Broadcast Burn Near El Valle

By Kay Matthews

On election day fire crews from Carson National Forest, including the Taos Hot Shots and Camino Real Ranger District personnel, began a two-day prescription burn along Forest Road 207 leading to the village of El Valle. This area has been thinned over the past 10 years by community members with Contract Stewardship Blocks, where the Forest Service marks the "leave" trees and the contractor cuts everything else (for the record, co-editor Mark Schiller and I have thinned three stewardship blocks). A winter fire to burn brush piles on some of the blocks was conducted previously, but this was a broadcast burn along both sides of the road to clear the understory of brush, stumps, and new tree growth.

Unlike the controversial La Joya burn of 2008 (see La Jicarita News, August 2008), the Forest Service took a more conservation approach with the El Valle fire. According to crew boss Paul Delmerico from Taos, backlash from the communities of La Joya and Ojo Sarco and some disagreement within the Forest Service over the La Joya burn prescription dictated a prescribed burn in El Valle that was less hot and therefore less likely to scorch the trunks of the large ponderosa pines and piñon pines that make up the stands. There is still controversy over whether the regeneration goals were met in the La Joya fire (the Forest Service official position is that it was met) or too many of the predominant ponderosa pines were killed. While smoke from the El Valle fire blanketed the village for two days, to my knowledge no one went after the fire crews with an ax, like the Republicans did to the Democrats on election day (see Editorial).





• The New Mexico Water Dialogue's 17th Annual Meeting will be held on January 13, 2011 at the Indian Pueblo Cultural Center, 2401 12th Street, Albuquerque. The meeting will run from 8:00 am to 4:00 pm and the theme of this year's dialogue is Economic Stress: Hard Times for Water Planning and Management. The keynote speaker is Dr. Janie Chermak, Professor of Economics at the University of New Mexico. Panels include the Update on the 2010 State Water Plan, Adventures in Regional Water Planning, and Economic Slowdown: Impacts on Growth, Water, and Land Use. For more information go to www.nmwaterdialogue.org.


• The Environmental Analysis for the Carson National Forest Travel Management Plan on the Camino Real Ranger District will finally be available for public comment on December 20. In response to unmanaged recreation, including the effects of off-highway vehicles (OHVs), the Forest Service published final regulations for motorized travel, and the Carson solicited input from the public and other agencies to promulgate its Travel Management Proposed Action. While the Jicarilla and Questa districts are currently closed to cross-country travel, the plan proposes to eliminate cross-country motorized vehicle use in the other districts. The number of miles of trails designated for use of motorized vehicles 50" or less in width (OHVs) in some instances will be increased, while other trails currently open to OHVs will be closed. The EA for the Camino Real Ranger District, which currently experiences the most OHV use, received the most comments during the scoping hearings and has taken the longest of finalize. There is a 30-day comment period after its release. If you're not on the mailing list and would like to receive a copy you can contact the Camino Real Ranger District at P.O. Box 68, Peñasco, NM 87553 or telephone 575 587-2255. You can request a hard copy through the mail or access the document through the Forest Service website.


"There is, I feel, an age at which the individual man would wish to stop; you are about to inquire about the age at which you would have liked your whole species to stand still. Discontented with your present state, for reasons which threaten your unfortunate descendants with still greater discontent, you will perhaps wish it were in your power to go back, and this feeling should be a panegyric on your first ancestors, a criticism of your contemporaries, and a terror to the unfortunates who will come after you."

&endash; Jean Jacques Rousseau


Los Alamos National Laboratory: Never Ending Vigilance

By Kay Matthews

Editor's Note: Many thanks to Joni Arends of Concerned Citizens for Nuclear Safety for her help with this article.


It's a fulltime job watch-dogging Los Alamos National Laboratory. The folks who are doing it here in New Mexico &endash; Concerned Citizens for Nuclear Safety (CCNS), Nuclear Watch New Mexico, Los Alamos Study Group, Embudo Valley Environmental Monitoring Group, Tewa Women United, Southwest Organizing Project, Amigos Bravos, and others &endash; have to depend on funding from citizen donations and foundations to monitor Lab activities, and when they have to file administrative appeals or lawsuits to force LANL to comply with state or federal regulations they must raise additional funds for legal services or rely upon the few law firms that are sometimes able to donate pro bono work (New Mexico Environmental Law Center, Western Environmental Law Center). The following are three outstanding lawsuits against LANL that require enormous amounts of time, energy, and money from these community groups.

Clean Water Act

In February of 2008 Communities for Clean Water (comprised of CCNS, Embudo Valley Environmental Monitoring Group, Amigos Bravos, New Mexico Acequia Association, Partnership for Earth Spirituality, Rio Grande Restoration, Don Gabino Andrade Community Acequia, Southwest Organizing Project, Tewa Women United, J. Gilbert and Kathy Sanchez) filed a Clean Water Act lawsuit claiming that LANL has failed to comply with the terms and conditions of its National Pollution Discharge Elimination System (NPDES) storm water permit at over 200 dump sites, where contaminated storm water is allowed to run off into the soils, surface water, and shallow groundwater of LANL's Los Alamos and Pueblo canyon watersheds, eventually traveling down-gradient to the Rio Grande. The plaintiffs have been involved in settlement talks with LANL and the Department of Energy (DOE) since that time, and while they are hopefully close to signing an agreement, the process has been long and arduous and taxing on the meager resources these groups have at their disposal. Because of the confidential nature of the settlement negotiations I can't provide any details at this time, but Communities for Clean Water is determined that any agreement will have to require clean up of these contaminated sites and prevent further contaminated storm water from reaching the Rio Grande.

In the meantime, the Environmental Protection Agency (EPA) wrote an "individual" storm water permit for LANL. Communities for Clean Water reviewed the draft permit, made detailed technical comments, and participated in extensive negotiations with EPA, DOE, and LANL about the permit. Through many twists and turns, it was finalized on November 1, 2010. The permit is available at: ftp://ftp.nmenv.state.nm.us/www/swqb/NPDES/Permits/NM0030759-LANLStormwater.pdf

Chemistry and Metallurgy Research Replacement Facility

Another lawsuit was recently filed by the Los Alamos Study Group based in Albuquerque that seeks to prohibit all further investment in the Chemistry and Metallurgy Research Replacement (CMRR) facility at LANL until the DOE and the National Nuclear Security Administration (NNSA), a semi-autonomous agency within the DOE that oversees the nuclear weapons facilities, prepare a new Environmental Impact Statement. The NNSA has instead released a Notice of Intent to prepare a Supplemental Environmental Impact Statement for the CMRR facility. The original EIS was released in 2003.

The CMRR project would consist of two buildings at LANL: a smaller Radiological Laboratory, Utility, and Office Building, which has been constructed, and the proposed main Nuclear Facility that would be used for storing, processing, and handling the several tons of plutonium needed for expanded warhead pits. The projected cost is $4.5-5 billion, a seven-fold increase in the 2003 estimated cost (which, according to the Los Alamos Study Group, exceeds the entire cost of the Manhattan Project in New Mexico by a factor of six in inflation corrected dollars) while the proposed size of the building complex is 50 percent greater.

The DOE sponsored two scoping meetings in October, the first in White Rock and the second in Pojoaque. At the White Rock meeting "experts" were available at their posters to answer questions. Public comments were taken in a separate room &endash; by audio, computer, or in writing, thereby negating an opportunity to hear the concerns of others. After numerous complaints from the public, at the second meeting in Pojoaque the officials allowed public speakers to directly address the audience but did not record the comments. Fortunately, Robin Collier of Cultural Energy was there and recorded all the speakers (http://www.culturalenergy.org/lanl.htm). Cultural Energy is another New Mexico non-profit that has spent enormous time and energy monitoring LANL activities and making public hearings and meetings accessible to the public.

The speakers at the Pojoaque hearing came from Albuquerque, Taos, San Ildefonso Pueblo, Santa Fe, Santa Clara Pueblo, and points in between. They not only supported the need for a new EIS, they more fundamentally questioned the need for any facility when the Cold War is over, nuclear containment is promoted by the current administration, and the need for plutonium pits for the so-called "reliable replacement" of existing nuclear weapons &endash; the nuclear industry's rationale for the need for new pits &endash; has been discredited by the scientific community. Specifically, several spoke about the DOE's "dog and pony" show that LANL trots out at all its public meetings bragging about the federal dollars spent in New Mexico but neglecting to mentionthe abysmal bottom of the barrel status the state, and particularly the Española Valley, hold in income and poverty levels. Many more speakers urged the DOE to redirect funding for clean-up of LANL's legacy wastes, enhanced non-proliferation work, and renewable energy development. Public hearings will be scheduled when the draft EIS document is released, sometime next spring. (http://nnsa.energy.gov/nepa/cmrrseis)

Photo by Jakob Schiller


Conejos County &endash; San Luis Valley Hazardous Waste Transportation Route

Another lawsuit against the DOE and the NNSA was filed at the beginning of November by the southern Colorado groups Conejos County Clean Water, Inc. and San Luis Valley Ecosystem Council, and New Mexico's CCNS. The plaintiffs are challenging the decision to transport, transfer, and store toxic, hazardous, and radioactive waste materials generated at LANL at a site adjacent to the town of Antonito, Colorado, in Conejos County. The groups claim this decision was made without conducting a site-specific review of the impacts on the local citizens and environment as required by the National Environmental Policy Act (NEPA). NNSA authorized the transport and storage of these materials under the auspices of the Final Site-Wide Environmental Impact Statement for Continued Operations of Los Alamos National Laboratory in 2008.

Without any notification to the community the DOE transported and transferred toxic, hazardous, and radioactive waste materials from flat-bed semi trucks to nuclear gondola rail cars (owned by the San Luis & Rio Grande Railroad) by crane at a site located a quarter mile from the town limits of Antonito, within 500 feet of nine residences and 250 feet of the San Antonio River, which is a headwaters tributary to the Rio Grande. The cargo being transferred consisted of large, dirty white bags filled with soils contaminated with depleted uranium (DU) and polychlorinated biphenyls (PCBs) from LANL. Apparently LANL had contracted with EnergySolutions to ship the waste to its disposal facility in Clive, Utah. DOE was removing the waste pursuant to the 2005 Compliance Order on Consent issued by the New Mexico Environment Department and agreed to by DOE and LANL. After the transfer to the San Luis & Rio Grande Railroad the rail travels north to Alamosa, east over La Veta pass to Walsenburg to the Union Pacific Railroad. Union Pacific then takes the waste north through the Front Range cities of Pueblo, Colorado Springs, Denver, and Fort Collins into Wyoming and finally west to Clive, Utah.

After Conejos County officials determined that no County Land Use Permit was in place they halted the transfer operation in November 2009. They also discovered that EnergySolutions had not received a Colorado Department of Transportation Access Permit to travel from US Highway 285 to the transfer site, which is accessed via a dirt road. A series of public meetings and consultations were held with the Colorado congressional delegation, led by Representative John Salazar (a brother of Secretary of the Interior Ken Salazar), local elected officials, DOE, LANL, EnergySolutions, the railroad, members of Conejos County Clean Water, and others. A task force made up of representatives from these groups was established in order to try to resolve the issues.

The San Luis & Rio Grande Railroad then purchased the property of the proposed waste transfer site at Antonito while its parent company obtained an Access Permit from the Colorado Department of Transportation and threatened to resume transfer operations. In the meantime, the radioactive, toxic and hazardous LANL waste was transported by truck through the Carson National Forest, San Juan National Forest, Abiquiu, Cebolla, Tierra Amarilla, Brazos, Chama, Chromo, Colorado, Pagosa Springs, Nutria, Piedra, Bayfield, Gem Village, Grandview, Durango, Hesperus, Mancos, Cortez, Lewis, Yellow Jacket, Pleasant View, Cahone, Dove Creek, Monticello, Utah, La Sal Junction, Moab, Crescent Junction, Wellington, Price, Helper, Martin, Colton, Soldier Summit, Spanish Fork, American Fork, Lehi, and South Jordan to the EnergySolutions site in Clive, Utah. (The last shipment in December took more than 30 days to travel from LANL to the Clive dump.)

The County continued to challenge the operations and finally filed an injunction against the railroad in May of 2010 (the county later dismissed its case voluntarily because there was no activity to enjoin and the task force continued to meet for discussion). The coalition of non-profits eventually filed its lawsuit to force the DOE to issue an Environmental Impact Statement.

According to Joni Arends of CCNS, "DOE stated that if the Antonito route is opened up it will use it to ship waste from Sandia National Laboratories in Albuquerque and the Pantex Plant, located near Amarillo, Texas. DOE would then most likely use Sandia and Pantex as staging areas to receive waste from throughout the DOE complex for shipment through Antonito to the EnergySolutions' dump."

Casey Mason planting garlic at the Schiller/Matthews farm in October


All that wood we cut in July is now all that split wood, thanks to Eric Shultz and Dave Correia

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