La Jicarita News January 2000- Community Advocacy for Northern New Mexico

New Mexico Attorney General Tom Udall was asked by state senators Dede Feldman and Carlos Cisneros to render an opinion regarding the controversial issue of instream flow, which is defined as leaving water in a streambed where it is "used" by way of providing aquatic and riparian environment for fish and wildlife. (Several legislative proposals, called water conservation acts, have been already put forward.) Before issuing an opinion, the Attorney General asked the State Engineer's Office (SEO) to prepare its opinion regarding both the legal and administrative issues related to instream flow. Parciantes and acequia associations from all over northern New Mexico attended a meeting with State Engineer Tom Turney on March 19 to hear a presentation from the legal division of his office regarding its analysis.

Assistant Attorneys General DL Sanders and Stephen Farris addressed the question of whether New Mexico law "permits the state engineer to afford legal protection to instream flows for recreational, fish or wildlife, or ecological purposes." Their answer essentially was that although neither common law nor state statute recognize the concept of instream flow, applications can be made to the state engineer requesting such use, and permission can be granted based upon current standards and guidelines. Because of this, their recommendation to the attorney general is that it is not necessary to pass legislation for the state to recognize instream use as an appropriate water right.

Sanders and Farris provided some historical information to explain how they arrived at this conclusion. Former state engineer Steve Reynolds was of the opinion that instream flow is not a valid water right because it has no point of diversion, or means of quantifying or differentiating that right from the other water rights in the river. His successor, Eluid Martinez, felt that because there is no unappropriated surface water in New Mexico, any instream flow right would have to be a transferred right, which could account for its measurability. If someone applied to transfer a water right to instream flow, he was prepared to proceed through the official protest procedure where all parties would be at the table to hear issues of beneficial use, public welfare, conservation, etc., and proceed to a court opinion. Tom Turney, the current state engineer, is of the opinion that in order to distinguish a water right for instream flow all water rights will have to be gauged. But because the best available gauges have large margins of error, the difficulties of accurately gauging water rights is enormous.

Ferris and Sanders also pointed out that other western states that legally recognize instream flow use on paper actually have no realistic way of guaranteeing that that water remains in their rivers. Most states, like New

Mexico, have established priority rights through adjudications and historical documentation, and must abide by these priority dates. Any attempt to claim priority for instream flow would open up a huge can of worms and could very well result in priority fights with Native Americans.

While most of those parciantes present&emdash;including representatives from the Taos Valley Acequia Association, the state Acequia Commission, the New Mexico Acequia Association&emdash;agreed the SEO would be the better agency to make decisions regarding instream flow, as opposed to the state legislature, there was general consensus that the SEO needed to have some regulations in place that would guide any future decisions regarding instream flow applications. Palemon Martinez, president of the Taos Valley Acequia Association, pointed out that former state engineer Steve Reynolds called instream flow a "beneficial non-use" and that administratively, enforcing instream flow would be a nightmare not only for the state engineer but at the local level as well. While Turney agreed with Martinez, he said that there are perhaps places where it might be appropriate to recognize an instream flow, or "minimum flow" right, such as between El Vado Dam and Abiquiu Lake, where the flow is artificially adjusted by dam releases, or on a section of the Red River where there are no other diversions.

Parciantes also expressed their concern that they will have to bear the financial burden of protesting individual instream flow applications before the SEO, and that any decisions favoring instream flow rights could set a bad precedent. Turney announced that the SEO had just approved lowering water application protest hearing fees from $300 per day to a flat fee of $25. It also amended regulations to allow acequias, corporations, or organizations to be represented by an authorized official, employee, or member of the particular entity.

Subsequently, on Friday, March 27, Attorney General Tom Udall and Asst. Attorney General Alletta Belin announced that in their opinion New Mexico constitutional, state, and case law permits the state engineer to afford legal protection of instream flow. They concurred with the state engineer that applications submitted for approval must be transfers from traditional diversionary use, not new appropriations, and that gauging devices would have to be used to measure any instream flow right.

Udall and Belin arrived at this decision by analyzing the opinion that "it is beneficial use, and not diversion, that is the constitutional hallmark of a water right." They found that neither constitutional law nor state statute indicate that there is a requirement for a diversion in order to establish a water right, and that instream flow could constitute a beneficial use (although beneficial use is not defined by statute). While there is some New Mexico case law that does support the opinion that there must be a point of diversion to establish a water right, those decisions have been criticized and should not be applied in any general way. Because of these findings, Udall and Belin agreed with the SEO that it is not necessary to legislate instream flow: The SEO is legally mandated to hear water right transfers for the purpose of instream flow if approval of the transfer is "conditioned on installation of accurate and continuous gauging throughout the permitted stream reach."

Taos County Commissioners Pass Resolution Opposing Summo Corporation's Copper Mine

On February 26 representatives of the Taos/Rio Arriba Mining Reform Alliance (TRAMRA) went before the Taos County Commission to ask the commissioners to pass a resolution opposing Summo Corporation's proposed open pit copper mine near Picuris Pueblo. Resolutions opposed to mine development have already been passed by Rio Arriba County, Picuris Pueblo, the Eight Northern Pueblos, the National Congress of American Indians, and the city of Santa Fe.

Speaking for TRAMRA, Gary Vigil of Pilar reminded the commissioners that TRAMRA had previously appeared before the county in July asking for a resolution. At that time the county expressed its desire to contact a representative of Summo and invite the company to present the facts of the proposed mine before the commissioners. Summo subsequently declined the county's invitation. Vigil told the commissioners that county residents' concerns about the proposed open pit mine remain the same. The acid heap-leach mine would require 720 gallons a minute of water and Summo would have to seek water rights in an already apportioned basin. There is no guarantee that the acid used in the mining process could not break through barrier liners and contaminate the watershed, by means of either ground seepage or runoff. The Copper Hill area, just west of Picuris Pueblo, is culturally and historically significant to both the pueblo and Embudo land grant heirs. The potential air, noise and dust pollution, due to both the mine operation and related trucking, will affect all the surrounding communities. Any economic opportunity will be short-term (a projected 10-year project) with the high paying jobs going to Summo Corporation employees brought in and low paying jobs to locals. Vigil also pointed out that last year Summo Corporation failed to reclaim its exploration holes, mandated by state and federal law, until forced to do so by the New Mexico Department of Mining and Minerals.

In response to Vigil's presentation Commissioner Trujillo expressed his concerns over the amount of water necessary to operate the mine, as he did at last summer's presentation. Commissioner Romero asked Vigil if Summo had provided any potential employment figures; Vigil responded that to his knowledge the corporation has never provided those figures, and despite the possibility of some short-term jobs, the overwhelming majority of area residents are opposed to the mine. Commissioner Ortega stated that while the county welcomes clean jobs, it doesn't want a situation where a corporation comes in, makes "big bucks," then leaves the native people to deal with the problems. Commissioner Romero said it is important to get the word out to people within the watershed to never sell their water rights, for whatever reason. The commission then instructed County Manager Sam Montoya to draft a resolution stating the commission's opposition to the proposed Summo copper mine at Copper Hill. A strongly worded resolution passed at the March 24 commission meeting expressing the commission's opposition to mine development because of environmental, economic, cultural and natural resource protection concerns. The resolution was forwarded to the Bureau of Land Management, the New Mexico Congressional delegation, the Taos County legislative delegation, Rio Arriba and Santa Fe counties, potentially affected communities, and opposing interest groups.

A Conversation with Virgil Trujillo, Superintendent of Ranchlands, Ghost Ranch

Recently the editors of La Jicarita spent a morning with Virgil Trujillo, Superintendent of Ranchlands at Ghost Ranch, near Abiquiu, and his assistant Leonard Morfin. Virgil and Leonard, lifelong residents of northern New Mexico, are representative of the new, innovative thinking being applied to range management and grazing. They point out that at Ghost Ranch the emphasis is on range management and that grazing is only one of the tools they use to achieve healthy rangelands.

Virgil, who has been range management superintendent for nine years, explained that before 1965 Ghost Ranch lands were managed strictly for conservation. However, land managers noted that much of the rangeland was not flourishing in the way they intended or anticipated. A Chromo Colorado rancher, who was a friend of one of the land managers at the time, suggested that they try reintroducing a limited number of livestock and monitor the effects. Results, surprisingly, demonstrated that livestock had a positive impact on these lands. Inspired by this pilot project, the Presbyterian Church, which owns and administers Ghost Ranch, decided to make some of its nearly 20,000 acres available to northern New Mexico stockmen to supplement their grazing needs. In order to more closely monitor the effect grazing was having on these lands, a one-and-a-half acre exclosure plot was completely fenced and reserved from grazing. Contrasting the land within the exclosure plot with the grazed area immediately adjacent to it, Virgil pointed out that woody, invasive plants such as sage were thriving within the exclosure while there were none in the grazed area. Other important range plants such as winter fat and four-wing salt bush were leafy and vigorous in the grazed areas while they were woody and stunted within the exclosure. Virgil and Leonard, while acknowledging that range plants can be killed off by overgrazing, also noted that most range plants need some grazing at the right time of year to achieve maximum vigor.

Virgil has subsequently become an advocate of Holistic Range Management (HRM), which draws its inspiration from studies of herds in the wild. By limiting livestock to smaller areas for shorter periods of time, scientists have found herds graze an area more thoroughly, achieve a more balance diet, and impact the range in a positive way (trampling seeds into the ground, eating invasive weeds, leaving organic material). By limiting grazing to the period between November and May, when many range plants are dormant, keeping the herds within electrically fenced plots, and resting large portions of the range while intensively grazing others, Virgil has found that range quality has improved, wildlife has flourished, and the amount of water available on the ranch has increased. The Ghost Ranch grazing program can now help supplement the needs of 40 to 50 stockmen and up to 900 cattle per year. Stockmen can use ranch rangelands from two to six months per year. According to Virgil and Leonard, this program is available to stockmen throughout northern New Mexico, and applications are evaluated based on need. Many of the ranchers who use Ghost Ranch lands are dependent on their cattle simply to put food on the table. Some stockmen graze as few as two cattle and the ranch's upper limit is 40 head. Most ranchers, they explained, graze between 15 and 20 head.

Along with making rangelands available Ghost Ranch has also implemented programs to pregnancy check, de-lice, de-worm, and check the teeth of all cattle grazed on the ranch. The program also has an educational outreach component which encourages ranchers to learn new techniques of range and stock management which they can apply to Forest Service, Bureau of Land Management, and private allotments where they graze cattle at other times of the year.

While talking about Ghost Ranch's educational program Virgil expressed concern that the vast majority of Americans no longer have any idea where their food comes from or what it takes to get it to the market. This ignorance, he fears, allows the public to be exploited both financially and socially. He pointed to the effect some environmental groups are having on small-time stockmen and loggers as an example: "The vast majority of people, given sufficient information, will make decisions that will protect the environment and rural communities. However, in this age of specialization, many people are willing to turn this decision making over to groups and individuals they feel have more expertise than themselves. Some groups, which choose not to include the human community in the environmental equation, have taken advantage of the situation to promote campaigns that try to exclude all extractive uses of public lands, even when the resources are renewable and the extraction is done sustainably. This eventually could lead to the destruction of our rural communities and the exploitation of land which is now open space by corporate and developmental interests."

Virgil maintained that we need to promote sustainable uses of public and private land by focusing on what ranchers do right: "Groups like Ghost Ranch, the Quivira Coalition, and The Conservation Fund are promoting programs which can keep small-time ranching viable while protecting range and grasslands. These programs are vital for maintaining biodiversity, high quality watersheds, and healthy rural communities."

ANNOUNCEMENTS

• Seeds West Garden Seeds is looking for growers interested in growing out varieties of their seeds including beans, peppers, tomatoes and melons. They are also interested in what you may already be growing for seed to include in next year's catalog. If interested, please contact Leslie at Seeds West Garden Seeds, 317 14th St. NW, Albuquerque, NM, 87504, 505 843-9713.

• Exploring Telecommunications Opportunities for the La Jicarita Enterprise Community:

La Jicarita Enterprise Community and VisionArts, Inc. invite all area residents to participate in a meeting to explore the potential for developing a telecommunications company within the Enterprise Community. This is the first step in a community-driven feasibility study to address the economic impact (including jobs), products/services, and general community benefits of successful rural telecommunications companies. At this meeting, we will discuss the range and potential of telecommunications opportunities, related needs of the La Jicarita Enterprise Community, and strategies for the future. Your input is important. Please join us Monday, April 6, 6:00 pm at La Jicarita Enterprise Community office, 14155 State Highway 75, Peñasco (587-0074)!

• The Quivira Coalition, along with the Camino Real Ranger District and the Rio Pueblo/Rio Embudo Watershed Protection Coalition, is sponsoring a Peñasco "Talk/Walk" workshop on grazing and land management issues tentatively scheduled for Saturday, June 6. The Quivira Coalition has been working with ranchers and environmentalists all over New Mexico to implement ecologically sensitive ranching. The Peñasco workshop will feature short lectures and a slide show with a field trip to a prescribed burn area to demonstrate fire's effectiveness in rehabilitating grasslands. More detailed information will be provided in the next issue of La Jicarita.

INSIDE&emdash;

Ecosystem Management extended throughout Carson National Forest

Taos County Commissioners go on record opposing Summo Minerals' proposed copper mine

A Conversation with Virgil Trujillo, Superintendent of Ranchlands, Ghost Ranch

Carson National Forest Core Planning Team Implements Ecosystem Management Throughout Forest

As a follow-up to the articles La Jicarita has written regarding new management strategies being used on the Camino Real Ranger District, the paper visited with Carson National Forest's core planning team to see how the rest of the forest has been implementing these strategies. Present at the meeting were core team members Carveth Kramer (the forest planner), Ray Romero, Audrey Kuykendall, and John Shibley. Also attending the meeting was George Grossman, a member of the Rio Pueblo/Rio Embudo Watershed Protection Coalition.

Kramer, who has been the Carson planner since 1976, explained that the ecosystem management&emdash;or integrated resource management&emdash;process currently being used on the forest is a real grassroots initiative, first implemented on the Camino Real District, even though the region as a whole has participated in national training programs to implement it. The process breaks districts down into ecological management areas and analyzes them from the perspective of existing conditions, desired conditions, and possible practices to effect the desired conditions.

Kramer said that this process grew out of a need to get away from what he calls the "pinball philosophy" of management that the Forest Service has traditionally used: standards and guidelines that say "Do this" or "Don't do this" that have been too restrictive. "We've always acted like there's a stupid night crew we have to protect with pinball bumpers, or prescriptions. Now we're saying, we're the night crew and we've learned from past mistakes, so rather than setting up restrictive prescriptions in forest plans, let's describe the point we want to get to. Then we can go to the communities for scoping and use their input as a guiding light rather than the prescriptions. The vision can be adjusted in the monitoring, another area of planning that we need to improve. Did this project achieve the desired condition? This is what we need to do in our forest plan revisions."

This process is aided by the fact that it is now the "ologists"&emdash;wildlife biologists, hydrologists, etc.&emdash;who are the driving force on the districts. Up until the 1950s the agency had hired foresters, who moved around from ranger station to ranger station to learn about grazing management on grasslands districts or silviculture on heavily forested districts. "Now, on the Camino Real," Kramer said, "we have a wildlife biologist who is guiding the plan by describing the desired conditions." Then, Kramer explained, he can go to the communities for the dialog that is taking place on the left-hand side of the planning triangle (depicted at left). Any proposed practices have to be put before people in the communities to see how they feel about them or what actions they would like see the Forest Service take to get to the same desired condition. A good example of how this actually worked on the Camino Real was the communication between the district and members of the Truchas Land Grant who said yes, we agree that some of the areas near the grant need to be thinned to allow larger trees to grow and regenerate herbaceous ground cover. But instead of achieving that desired condition by burning, let our community go in first, harvest for firewood, and then the Forest Service can burn.

The Canjilon and El Rito districts on the Carson have recently completed their own ecosystem management plans, led by the core team, with involvement from everyone on the district, especially the people at the front desk who usually have lived in the communities all their lives.

La Jicarita asked Kramer if the Forest Service would agree to formalize the way communities can participate in projects within this management strategy, such as establishing community advisory boards or committees. Kramer responded that there are pluses and minuses with regards to such boards: They allow people to get involved who will bring continuity to the process, but the danger is that boards can slowly assume that they speak for the entire community when they may not, or assume that the land management agency will do exactly what they say. "But I think it's a great idea that we should look into," Kramer said.

The group also discussed how this management strategy might help the forest avoid future problems with projects such as the proposed Agua Caballos timber sale in the Vallecitos Sustained Yield Unit. While ecosystem mangement means getting away from the larger timber sales that were standard procedure in the past, the Sustained Yield Unit is governed under different criteria and the settlement of a lawsuit stipulates the number of board feet that will be cut in the Agua Caballo sale. But Kramer expressed his hope that everyone who has been involved in the controversies surrounding the Unit&emdash;La Companía Ocho, Forest Guardians, district forest personnel&emdash;will be able to focus on what they want to accomplish on the ground and recognize that they all want the same thing&emdash;big trees. While La Companía wants to harvest some of them, and Forest Guardians wants to preserve all of them, they both need to recognize that only through dialog and compromise can the desired condition be achieved. And the way to find that compromise is to go out into the sale and set a good prescription to meet these goals.

"While we do not perceive Forest Guardians as representing the public, " Kramer said, "they are serving a purpose by forcing a dialog. It's people like George [Grossman] who represent environmental interests. And George has always been willing to get out there on the ground and help us find out how to achieve goals."

EDITORIALS

At the March 19 meeting of northern New Mexico acequia commissions and state engineer personnel (see page 1) Wilfred Gutierrez of Velarde, president of the state Acequia Commission, spoke of the many ways the Rio Grande is important to his life: as a farmer, a fisherman, a rancher, a river valley resident. But while he values the river for all these things, he is always on his guard when the issue of legislating instream flow rights threatens to abrogate the priority rights of acequia parciantes, protected by the Treaty of Guadalupe Hidalgo. This year's proposed instream flow legislation was no different: Called the Water Incentives Conservation Act, it would have separated a parciante's water right from the collective right of the acequia to divert sufficient water to the parciante's farm.

The threat of a lawsuit by Forest Guardians again raises the instream flow issue. This suit ostensibly targets urban areas whose wastewater treatment plants, they claim, are threatening endangered species. Because of low river flows, plant emissions, although compliant with Environmental Protection Agency standards, are not being sufficiently diluted when released into the rivers. This may very well be true. But if the lawsuit's aim&emdash;or result&emdash;is to fuel renewed efforts to legislate instream flow rights, the people of northern New Mexico will bear the burden: All previously proposed instream flow legislation has targeted the acequias of northern New Mexico by seeking to compromise the historic diversion rights of acequias despite the fact that acequias have used water resources sustainably for centuries, providing biodiverse habitats along their banks and contributing to aquifer recharge. Actions that should be targeting the big guys&emdash;in this instance the Middle Rio Grande Conservancy District and its urban areas&emdash;may end up taking the water from northern acequias which sustain agricultural lands and a rural way of life. In the newly published book "A Landowner's Guide to Western Water Rights," author Mary Ellen Wolfe explores the origin of parciantes' strong motivation to guard their water rights: "Though water scarcity in the West is common, the human habits, laws and institutions that arose to cope with it are complex. To a considerable degree, this complexity is a reflection of the exacting years of hard labor and expense incurred by those who survived the stingent conditions of the Western cl.imate."

. . . . .

Along with its many legal actions, Forest Guardians' agenda now includes discrediting any groups or individuals who are working with communities and government agencies to protect the integrity of acequias and all the resources of northern New Mexico. Various members of the Rio Pueblo/Rio Embudo Watershed Protection Coalition, the New Mexico Acequia Association, the Santa Fe Group of the Sierra Club, and the Quivira Coalition have continually been vilified and labeled Wise Use. In a recent press release, Forest Guardians along with Gila Watch, Southwestern New Mexico Audubon and New Mexico Trout called the Quivira Coalition a "mouthpiece for the livestock industry" and an "industry-backed schmooze group that is trying "to whitewash the destruction of public lands." The Coalition, founded by several members of the Sierra Club, one of whom is the Conservation Committee Chair of the Santa Fe Group, has been recognized all over the state for its progressive work towards rehabilitating ranchlands and maintaining the viability of land-based people, the last bastion of defense against development of our open lands&emdash;the greatest single threat to biodiversity.

These environmental groups claim to speak for the American public. This "public", unfortunately, has little knowledge of the diversity or culture that is at stake here in New Mexico. In 1976 the Forest Service acknowledged our unique situation in its Region Three Policy which mandated that the villages and Native American pueblos of northern New Mexico be treated as a natural resource, with their welfare foremost in mind. It is time to honor that policy: the voice of certain environmentalists, actively working against that policy, is misguided, insensitive, and harmful.

Arts Marketing in Peñasco

What kind of art is created in Peñasco and the communities north and south of Peñasco? The question is now being answered through the efforts of an Arts Marketing Coordinator hired by Northern New Mexico Community College's Small Business Development Center. The person selected for this position is Tito Naranjo, originally from Santa Clara Pueblo, who now lives in Chacon in the Mora Valley. Mr. Naranjo works in coordination with La Jicarita Enterprise Community (LJEC) out of the Peñasco office. Mora and surrounding communities are included in the LJEC area, so Mr. Naranjo also works with artists in the Mora Valley.

The work of the Arts Coordinator is to build a database, which is simply a listing of artisans who live in the area from Truchas to Mora. Later, a database of market outlets will be created. The purpose of the two databases will be to increase sales of artists in the Peñasco and Mora areas through many forms of advertising, establishing a small loan program, encouraging studio tours, and creating actual physical outlets. A second goal of the project is to support the efforts of artists to remain in their communities while they produce their art. Currently 72 artists have been identified in the Peñasco area and 43 in the Mora communities. Monero and Lumberton are included in the LJEC catchment area: Five artists were located in Lumberton.

Artists possess a passion for their work, a passion which they enjoy sharing with others, including Mr. Naranjo. He observed that artists on the Peñasco side retain traditional art forms such as retablos, bultos, pottery, weaving and religious art as compared to artists on the Mora side of the mountains. Mora area artists tend to paint with acrylics and oils and create more secular rather than religious art forms. Their religious art tends to be modern, such as in fabric art and occasional religious figures carved from cedar.

If you are an artist or craftsman and would like to be included in the database, contact Mr. Tito Naranjo at the LJEC offices or call 587-0074. In Mora, call the LJEC office at 505-387-2298. There is a possibility that your art sales may increase.