La Jicarita News - Community Advocacy for Northern New Mexico

Since its inception in 1996, La Jicarita has been the only newspaper in New Mexico with a focus on the historical and contemporary conflicts over natural resources in northern New Mexico. Ours is a region populated by Pueblo people and Spanish and Mexican land grant settlers with long histories of resource use. They have used the forests, meadows, and rivers for firewood, building materials, grazing, and irrigated agriculture and have a vested interest in maintaining the integrity of lands that have sustained them for hundreds of years. But el norte also has an equally long history of exploitation by colonizers, developers, urban environmentalists, and government agencies that threatens the viability of these traditional resources and communities: loss of agricultural lands to development; transfer of water out of agricultural use; loss of grasslands to forest encroachment; loss of biodiversity due to fire suppression; lack of community access to forest resources; and the continuing decline in community stability due to lack of economic opportunity and attendant social problems.

While our focus on these issues won't change, the format of La Jicarita will. Beginning in 2012, La Jicarita will be published as an online journal and community forum by the University of New Mexico's American Studies Department. In its new form, La Jicarita positions itself at the point where critical scholarship and community activism converge. So in addition to the political reporting and writing that La Jicarita is known for, the new journal will include peer-reviewed academic articles that address issues related to New Mexico politics, economics, natural resources, and culture. The new La Jicarita will continue the tradition of the old La Jicarita while taking advantage of the institutional and academic resources and possibilities of UNM. This shift will in no way alter the commitment of La Jicarita to challenge dominant views of natural resource use and management in northern New Mexico. Rather, we see the shift as one that opens up new possibilities to reach more readers, recruit new voices, provide a larger platform for the analysis of critical issues, and thus envision new futures.

The new institutional structure provides unique opportunities for UNM students. The American Studies Department will manage La Jicarita in conjunction with Kay Matthews, the current publisher/editor. La Jicarita will continue to report on important issues and the politics of land and water in New Mexico but will do so through a new online format that will allow us to get articles published more quickly and cover issues more aggressively. Each issue will be brought to press by a collective of undergraduate and graduate students under the advisement of David Correia, Assistant Professor of American Studies. In addition, students will participate in developing the theme for an annual scholarly issue of the journal, write a call for papers, receive and vet papers, manage the peer-review process, and design and publish each online issue.

We are recruiting an editorial board to help oversee the new La Jicarita.We look forward to bringing this collaboration to fruition, and in the last 2011 issue will announce a more specific time frame regarding the new publication.

Tierra Amarilla Land Grant Board "Waives mineral rights it doesn't have" in Controversial Deal with Oil Company

By David Correia

At the July 28th meeting of the State Legislature's Land Grant Committee held in Abiquiu, New Mexico, legislators examined a controversial mineral deal between a group calling itself the Tierra Amarilla Community Land Grant and a Canadian oil company called Wind River Energy Company. The deal came to light in early June when the Rio Grande Sun ran a front-page article titled "Who Sold Tierra Amarilla Mineral Rights?" Rumors have been swirling ever since. The Committee, made up of senators and representatives from both sides of the aisle, wanted to know why Wind River Energy Corporation paid the TA "Community Land Grant" $233,979.73 on May 28th.

Nearly two hundred people packed the old Joe Ferran gymnasium to hear testimony from Jack Steinhauser, President of Wind River; Dennis Wells, President of the TA Land Grant board; Jake Arnold, a representative of the Sheriff's Department; and Belarmino Archuleta, a local land grant activist and critic of the TA board. Archuleta began with a twenty-minute diatribe in which he complained about the lack of transparency of, or community support for, the land grant board. He suggested that a legitimate land grant board would not waive mineral rights to the grant for any reason or to any entity.

Steinhauser then explained Wind River's future plans for gas exploration on the grant. The Milagro Fractured Niobrara Shale Oil Project, as Wind River's Tierra Amarilla operation is called, will use controversial hydraulic fracturing methods to extract what the firm hopes will be more than 10 million barrels of gas from the grant. In hydraulic fracturing, commonly referred to as fracking, gas trapped in rock shale is extracted by injecting fracking fluid at high pressure into shale deposits. The fluid is generally a slurry comprised of liquids, various chemicals, and compressed gases. The force of the fluid fractures shale deposits and releases trapped methane gas.

Critics of hydraulic fracturing claim that, among other things, the fracturing creates a potential for the migration of gases and chemicals into groundwater. A number of studies have confirmed the criticism. A 2010 Environmental Protection Agency report discovered arsenic in drinking water adjacent to drilling operations. In another study, Duke University scientists found flammable levels of methane gas in drinking water adjacent to natural gas wells in the Marcellus and Utica shale drilling regions in Pennsylvania and New York.

Steinhauser began by asserting that expanded gas extraction would end the "cycles of poverty and drug and alcohol abuse" that have long plagued Rio Arriba County and then promptly contradicted himself when he reminded the committee that 57,000 rigs have been operating for years in the region, pumping high pressure fracking fluids into wells throughout the San Juan Basin. Eleven thousand of these operate in Rio Arriba County, and more than 60 million barrels of natural gas have already been recovered.

Despite the huge reserves of oil and gas below the grant, however, Steinhauser said that the cloud over property claims for the land grant "has long convinced most major oil and gas companies to avoid exploration and activity within the Land Grant." He concluded by suggesting that the waiver accomplished what people had long hoped for in Tierra Amarilla: "[We finally] resolved the title cloud" surrounding the Tierra Amarilla land grant, he told an incredulous committee.

Land grant heirs have long struggled to "esolve the title cloud" over lands they say were stolen by speculators in Tierra Amarilla. A group that called itself the Corporación de Abiquiu, claiming to be the official representative of TA land grant heirs in the 1930s, represented heirs in a series of quiet title lawsuits that spanned more than twenty years, from 1939 until 1960. In all of those lawsuits, the Corporación sued or was sued over its claim to collectively own land that large, private Anglo ranchers also claimed. The courts disagreed, however, with the common property claims and quieted title for the private ranchers.

Steinhauser suggested that his success in buying off the land grant board represented a watershed moment for the land grant, yet given the property struggle in Tierra Amarilla it appears as more of a victory for private owners than it is for collective claims. And his claim that the waiver legally bound every heir to the agreement alarmed a number of senators and representatives who turned to Dennis Wells to find out precisely who his board represented. Wells told Jimmie Hall (R-Bernalillo) it was ‚"the process of being recognized as a political subdivision of he state," but then later contradicted himself when he told Eleanor Chavez (D-Bernaililo) it was an official organization. He then contradicted himself a third time when he told Senator Bernadette Sanchez (D-Bernalillo) that his group was not official but "an independent association."

At one point Representative Miguel Garcia (D-Bernalillo), Chairman of the Land Grant Committee, asked Mario Martinez, Secretary-Treasurer of Wells' group and one of the signatories to the deal that signed away mineral claims for TA to Wind River, to shed some light on the organization and the waiver agreement.

Martinez is a direct descendent of Manuel Martinez, the Poblador Principal of the original Mexican land grant in Tierra Amarilla. Wearing a suit and tie, he stood throughout his short presentation. He was at times defiant, other times angry, and toward the end, contrite. The group, he said, struggled to get heirs to come to meetings and had only 55 registered members because "a few agitators in the community" including, according to Martinez, elected officials, were conspiring against their organization. He told the committee that neither the County nor Garcia's land grant committee had any jurisdiction whatsoever over what his land grant group did. When Martinez declared that the money from Wind River would be devoted to "administrative costs" rather than distributed to heirs, an audible groan rippled through the old gymnasium. At that point Martinez stopped his presentation and turned to the crowd. He told those assembled that the revised bylaws he and Wells had filed with the Secretary of State in 2010 contained a clause that restricted heirs from talking publicly about the land grant without permission from the board; a board which serves, according to Martinez, in perpetuity. Any public criticism of the board, he argued, was "illegal."

The Committee then turned to Jake Arnold, a special aid to the Rio Arriba County Sheriff"s Department, for help in clarifying the history and significance of the Wind River deal. According to Arnold, the deal between the TA board and Wind River has a long, troubled history and is linked to the controversies that engulfed Rio Arriba County in 2008 when exploration activities by a Texas gas company created an uproar by local residents and led the County to declare a moratorium on gas extraction.

The story begins in 2006 when a limited liability oil company named Lynx Production Company, owned partly by an oilman named Dewitt Smith, acquired leases for mineral rights on more than 90,000 acres on lands within the Tierra Amarilla land grant boundary. Lynx sold these leases in 2007 to a Fort Worth, Texas Company called Approach Resources, Inc. Approach Resources, connected to companies with holdings throughout the U.S. and as far afield as Tunisia, added Lynx's 90,000 acres to lease holdings of 300,000 acres it already owned in Rio Arriba County. Landowners within the boundaries of the Tierra Amarilla land grant woke up in 2008 to find the company drilling exploratory wells near creeks, acequias, and on grazing lands. Rio Arriba County declared a moratorium on all gas exploration in the County and quickly moved to develop a comprehensive extraction ordinance. When the County published its new ordinance in 2010, Approach Resources sued and in a settlement received permits for eight wells.

This history, according to Arnold, is important because in July of 2008 the TA land grant board signed a waiver and indemnification agreement with another company owned by Dewitt Smith. The agreement, which was not made public at the time by either Smith or Dennis Wells, gave Smith‚Äôs Petro Rio Oil Company a three-year option during which he could designate lands within the boundaries of the 600,000-acre land grant for gas exploration. If during those three years Rio Petro, later renamed Rio Chama, decided to explore for gas, the agreement would commit the company to pay the land grant board $2.50/acre for all nominated lands. In exercising the option, the land grant agreed to relinquish any and all claims to the mineral rights below the entire Tierra Amarilla land grant.

In December of 2010, Smith sold the waiver, along with geological studies regarding gas and oil reserves in the land grant, to Wind River Energy Corporation. Steinhauser then hired Santa Fe real estate attorney James Bruce to provide an opinion as to the legality of the waiver. Bruce, who previously served as a corporate agent for Dewitt Smith and before that as the agent of service for two other oil companies with oil leases on the Tierra Amarilla land grant, delivered a legal opinion to Steinhauser on December 2, 2010. With no mention of any possible conflict of interest he might have, he concluded that the waiver, signed by Dennis Wells, Mario Martinez, and Danny Martinez, three of the eight board members listed in bylaws filed with the New Mexico Secretary of State, was a legal document that not only bound the official members of Wells's TA Community Land Grant but also all the heirs, known or unknown, of the land grant in both Colorado and New Mexico. According to Steinhauser, Bruce concluded that the waiver "cures all questions and uncertainties surrounding title to oil, gas and mineral rights" on the Tierra Amarilla land grant. Bruce has not returned repeated phone calls for comment on this opinion, his work with Steinhauser, or his role with other oil companies operating in Tierra Amarilla.

With Bruce's opinion in hand, Wind River exercised waiver rights it acquired from Smith and nominated 93,591.89 acres along the grant's southern boundary for exploration on the grant. In a May 31, 2011 press release it announced that it paid $233,979.73 to the Board of Trustees of the Tierra Amarilla Community Land Grant for what Steinhauser, a former investment banker, described to the Land Grant Committee as equivalent to a quiet title to the mineral rights on the land grant. The check was made out to the Tierra Amarilla Land Grant Board and mailed to a Los Ojos post office box on May 28th.

According to one official in the Sheriff's department, an important and unanswered question is whether any money changed hands between Lynx and Wells' TA land grant board in the years before the Rio Chama/Wind River deal. Dewitt Smith was a part owner of Rio Petro/Rio Chama when that company entered into its waiver agreement with Wells and Martinez in 2008. Did Dewitt Smith enter into a similar agreement with Wells two years earlier when he served in the same capacity for Lynx? If so, did Smith pay the TA board for waiver rights then? And if that is the case, was the TA community land grant involved in the controversial drilling by Approach?

As for the Wind River deal, Committee members grilled Wells and Martinez for nearly three hours about their group.Was it a legitimate political subdivision of the state? Was it authorized to enter into legal agreements such as the waiver? What authority did it have over mineral rights? After hours of testimony, Senator Tim Keller (D-Bernalillo) remained incredulous. "I'm not sure what you bought,‚" he told Steinhauser; the land grant board appears to be "an entity without the authority to waive" mineral rights. But to avoid the legal costs of a potential lawsuit, Steinhauser decided to pay Wells, as he said during the hearing, "to waive the rights they do not have."

Bringing in theWood, Otra Vez

This year's wood crew, clockwise starting at left: Casey Mason, Jake Kosek, Ruby Kosek, Jakob Schiller, David Correia, Max Schiller, E#ric Shultz. Muchas gracias a todos.

ANNOUNCEMENTS

• The National Nuclear Security Administration picked a late Friday afternoon, August 26, to post its Final Supplemental Environmental Impact Statement on the Chemical and Metallurgy Research Replacement project at Los Alamos National Laboratory. As expected, despite voluminous comments from the public opposing the project, NNSA changed little on this FEIS from the draft, in which it refused to revisit the 2004 decision to build the $6 billion Nuclear Facility that will expand LANL's manufacturing capability of plutonium pits from 20 to 80 a year.

The Preferred Alternative calls for modification of the 2004 design to meet more recent concerns about potential seismic activity at the site, but leaves undecided whether to use a "Deep Excavation" or "Shallow Excavation" Option for construction of the Nuclear Facility. Joni Arends of Concerned Citizens for Nuclear Safety and Robert H. Gilkeson, a former LANL whistle blower, issued a 43-page report in June documenting their concern that there is insufficient, incorrect, and misrepresented seismic information for the design of the Nuclear Facility. According to Gilkeson, "The data in the reports by DOE and LANL show that the maximum power of the faults is M8, a great earthquake. The hazard at the proposed CMRR Nuclear Facility is based on a maximum energy of a 7.27 earthquake, which is more than 20 times below an M8."

There remain several hurdles to the project, however. The Los Alamos Study Group‚Äôs lawsuit against NNSA and the Department of Energy over the Nuclear Facility is in the New Mexico Court of Appeals. In June, the House Appropriations Committee voted to cut $100 million in fiscal year 2012 funding for the project, which is 33 percent below the budget request. This Energy and Water appropriation bill was passed by the House and was sent to the Senate for consideration. The project may also be affected by decisions made by the "super committee", conceived of when the federal government avoided a shutdown last month over the debt ceiling. The committee will be comprised of three members appointed from each political party charged with coming up with $1.2 trillion in spending cuts this year. Should the super committee fail to come up with a bill, automatic cuts would go into effect that would drastically reduce defense spending.

• La Jicarita News got a strange request the other day, but I'm not one to stand in the way of the potential passage of anthing holy, so I'm printing the request:

"Interested in receiving samples of 'holy dirt' from Chimayo. Please advise cost or send sample for payment to: Gary West, Box 2535, Saint John, N. B., Canada E2L 4S8."

Acequias de las Sierras: La Jicarita Transbasin Diversions Dating from the 1800s

By Kay Matthews

We had Carson National Forest to ourselves on July 26 because of the forest-wide closure due to high fire danger (Las Conchas fire was burning the east side of the Jemez Mountains from south to north). The purpose of our visit was to inspect the three trans-basin diversions that take water from the west side of La Jicarita watershed above Peñasco and divert it across the mountains east to the Mora Valley villages of Chacon, Holman, and Mora. The folks who went on the trip are key players in water management from both sides of the mountain: Picuris Pueblo Governor Gerald Nailor, Lieutenant Governor J.D. Martinez, New Mexico Acequia Association board members Antonio Medina, Harold Trujillo, and Estevan Arellano, Bureau of Indian Affairs representatives, and acequia mayordomos and commissioners from affected ditches.

In the July 2009 issue of La Jicarita News Mark wrote an article about how these diversions came about. After a group of Indo-Hispano settlers moved from the Picuris Pueblo grant to the Mora Valley in 1816 they found they needed additional waters for agricultural purposes and requested permission from Picuris Pueblo to divert water from the crest of the Jicarita Mountain. The first diversion was made from the Alamitos tributary of the Rio Pueblo to Cleveland and Mora before 1832, when it is known that the colony was abandoned due to the attacks of nomadic tribes. After the valley was resettled in 1835 the residents of Chacon constructed a second diversion on La Junta tributary (Rito la Presa), which was completed in 1865. A third diversion on the Rito Angostura tributary was begun in 1879 and delivered water to Agua Negra (Holman) by 1882.

Map showing the three acequia diversions in relationship to the Rio Pueblo and Rio Mora. The Acequia del Rito Griego y la Lierra is diverted from the Rito la Presa, the northern most diversion in La Junta Canyon. The Acequia de la Sierra de Holman is diverted from the Rito Angostura. The Cañoncito y Encinal Acequias are diverted from Alamitos Creek.

Whether the Pueblo actually gave its permission for these diversions is open to question. In fact, in 1882 the Pueblo filed suit to stop the diversion of water to Holman and also claimed that the Pueblo had protested the other two diversions as well. For unknown reasons the Pueblo did not pursue the lawsuit, and the parciantes from the Mora Valley, represented by the infamous Thomas Catron, who had obtained an interest in the Mora Land Grant, successfully had the suit dismissed. But it was dismissed without prejudice, which means the Pueblo was free to pursue its complaint in the future.

The mood of the field trip more than a hundred years later was conciliatory, however. Governor Nailor told the assembled group that the Pueblo wants "an equal playing field" and that there need to be gauges installed at the diversions that measure the amount of water agreed to by all the involved parties.

Picuris Pueblo Governor Gerald Nailor talking to commissioners and mayordomos at Alamitos

What we saw at the oldest diversion on the Alamitos, which delivers water to the Cañoncito y Encinal Acequias, was disturbing. The diversion was originally constructed out of logs, but the acequia commissions received capital outlay money from the state legislature to build a concrete headgate in 2007. Somehow the Texas branch of Trout Unlimited got involved in the project and added a fish barrier for native trout to the diversion. In July of 2010, however, flood waters blocked the headgate with debris and washed away the embankment. The commissioners subsequently received $22,000 in FEMA funding (they also received$143,000 in stimulus funding in 2010 for other acequia rehabilitation) to return the acequia to its original condition. John Miera, at the Carson National Forest Supervisor's Office, is now demanding that the acequias must get special use permits to rebuild the project, just as he did on projects on the west side of the mountain (see La Jicarita News, April 2009).

The flooded headgate on the Alamitos diversion to the Cañoncito y Encianl acequias

Just below the Cañoncito y Encinal headgate the Acequia de la Sierra de Holman crosses the Alamitos as it travels from the Jicarita Peak bowl (Horseshoe Lake), the headwaters of the Rito Angostura, to Holman. This is the acequia you cross when you climb FT 19 to Serpent Lake. During natural flows both ditches divert all the water from the Angostura and Alamitos, which serves as an overflow channel to the Rio Pueblo.

Jimmy Sanchez, mayordomo of the Acequia de la Sierra de Holman

The Acequia del Rito Griego y la Sierra in La Junta Canyon feeds into two acequias in Chacon, Acequia La Joya and Rito Griego. If you drive into Chacon from the Mora Valley you can see its drop-off from the mountain top to the acequias. The headgate for the new diversion was built in September of 2008. This is the ditch that seems to run uphill and defy gravity. It is testimony to the ingenuity and perseverance of its builders, but on the day wevisited, during this year of drought, the water being diverted was not able to travel the three and a half miles to the drop-off. One of the BIA officials on the tour suggested the obvious: that when there‚Äôs not enough water to make it to the acequias the diversion should be closed and the water allowed to travel down La Junta to the Rio Pueblo. When I asked how the acequia commissioners on the two Chacon ditches divide the water into shares, they responded that the headgate diverts half to the Chacon acequias and the other half flows down La Junta Canyon to the Rio Pueblo. Again, Governor Nailor pointed out that there needs to be a gauge and an agreed upon formula for sharing the water.

Looking down at the Acequia del Rito Griego y la Sierra from La Junta Canyon road.

At the end of the day Governor Nailor suggested that all the parties agree to meet again, at either the Pueblo or in the Mora Valley, to further discuss what they witnessed on the tour. Antonio Medina invited everyone to the Community Center in Mora whenever the Governor wants to convene a meeting. As we go to press the Pueblo announced it hopes to have a meeting early in October.

Vallecitos Area Grazing Associations Prepare to File Suit Against Forest Service

As I reported in the April/May issue of La Jicarita News, the Alamosa and Jarita Mesa grazing associations in the Vallecitos Federal Sustained Yield Unit have consulted with attorneys Richard Rosenstock, Ted Trujillo, and Simeon Herskovits about possible relief actions they might take to challenge El Rito District Ranger Diana Trujillo's Record of Decision on their grazing Environmental Assessment issued on September 30, 2010. The attorneys are now preparing a combined lawsuit charging First Amendment rights violations, retaliatory action on the part of Ranger Trujillo, and a challenge of the EA and Record of Decision based on procedural improprieties with regard to the National Environmental Policy Act (NEPA). At the end of August the Rio Arriba County Commission agreed to also be a party to the lawsuit against the Forest Service.

The El Rito Ranger District released the EA for the Jarita Mesa and Alamosa grazing allotments with three proposed alternatives: 1) no action; 2) maintaining the permits as is, with minor adjustments; and 3) an 18 percent reduction in the number of livestock over the next five years to pre-1980 grazing levels. The Proposed Action was number 2, essentially maintaining the status quo of the grazing permits. But District Ranger Trujillo rejected the proposed action in her Decision Notice, calling it "unsustainable", and instead chose Alternative 3, reducing the grazing permits by 18 percent.

Members of the Jarita Mesa and Alamosa grazing associations claim that Trujillo's rejection of the Proposed Action was in retaliation for the fact that their members signed a petition in late February 2010 seeking to have her transferred out of the El Rito Ranger District "for being uncooperative, unresponsive, and callous in carrying out the mission of the Forest Service as it relates to working with local folks in maintaining our traditions, local culture and customs." The attorneys expect to file the lawsuit within the next few weeks.

Lower Rio Grande Adjudication Update

The July, August, and September status conferences for the Lower Rio Grande Adjudication being heard in District Court in Las Cruces were vacated, but there's been plenty of activity among all parties involved. The New Mexico Pecan Growers and the Southern Rio Grande Diversified Crop Farmers Association (SRGDCFA) have been trading motions and responses to discovery requests and the SRGDCFA's objection to the Pecan Growers "settlement", or what the Growers claim is only an agreement with the State as to the water requirements for pecan orchards.

Scott Boyd defended his water rights claim as a representative of the estate of Nathan Boyd, his great grandfather, against a motion to dismiss by the Elephant Butte Irrigation District. The District states three reason why Scott Boyd's claims should be barred by the court: lack of standing of Nathan Boyd and Scott Boyd as the majority heir of the Nathan Boyd Estate; that the claim has already been litigated; and failure to claim the essential requirements entitling Boyd a water right under the laws of New Mexico. To see Boyd's response and the details of the discovery activities you can go to the Third District Court website: www.nmcourts.gov/watercases/lriogrande.php.