La Jicarita News - Community Advocacy for Northern New Mexico

The philosopher George Santayana said that "those who will not learn from history are doomed to repeat it." We have not learned from the failure of courts such as the Court of Private Land Claims to protect land grant rights guaranteed under the Treaty of Guadalupe Hidalgo. Now the land grant study by the General Accounting Office and various proposed land grant bills are attempting to rectify that situation. Many of these injustices were caused by distortions of history used by the courts to back up decisions, but lacking historical validity. Examples are the faulty doctrine of the Sandoval case regarding the ownership of the common lands,1 and the flawed decision in the Embudo grant case failing to recognize the custom of making certified copies of grant documents by New Mexico alcaldes.2 Now new distortions of history are being created as water rights are being adjudicated by the courts and the New Mexico State Engineer's Office.

In discussing the distortions of history with regard to water rights in New Mexico, I want to make three main points:

1. It is the separation of land and water from a legal and a historical point of view, together with the imposition of priority adjudication - a concept that did not exist historically in New Mexico under Spain and Mexico - that has caused many of the problems we face today. Laws that are not considered fair or historically accurate by the grass roots rural communities of northern New Mexico will be the subject of the endless litigation.

2. This continuing litigation often causes further distortions of history, such as the Pueblo Rights Doctrine, and other misunderstandings that cause further litigation in a spiral that results in tremendous cost. Yet never ending lawsuits do not make any more water available or bring the contending parties any closer in allocating existing water.

3. The distortions of history that have occurred as a result of land and water litigation in the past are being compounded by current state policies that minimize the importance of history and historical documents and by policies that provide much more funding for historical research by the state than by the acequia community itself.

The common theme in all of this is the distortion of history that comes from the restraints of litigation, as well as the importance of a more realistic history based on the documentary evidence. My article "Sharing the Shortages"3 in New Mexico can be used to illustrate these points, especially if the methodology employed is compared to the process followed in the creation of the so-called doctrine of Pueblo water rights. First let me talk about the "Pueblo Rights Doctrine."

The Pueblo Rights Doctrine grew out of the need of the city of Los Angeles to establish municipal water rights superior to water rights of adjacent irrigators.

The pueblo referred to is not the Indian pueblo we are familiar with in New Mexico, but rather the Hispanic pueblo or community of Los Angeles. (There were three classifications of municipalities under the Recopilación: the pueblo, the ciudad, and the villa.) The so-called Pueblo Rights Doctrine stated that a qualifying community or pueblo had the right to take not only the amount of water necessary for the present uses of its inhabitants, but any additional water it might need for future growth, regardless of the claims of other water users. This rule, if strictly followed in times of shortages, could mean that the pueblo or municipality would take all or most of the water in a river to the exclusion of other water users.

The Pueblo Rights Doctrine was adopted in California with very little historical authority and then approved by other courts as a legal precedent rather than a historical doctrine. Nevertheless, in 1958, the New Mexico Supreme Court adopted the Pueblo Rights Doctrine in a case involving the town of Las Vegas. Again, there was no historical basis for the doctrine. So we are now in a situation where a rule of water allocation without any historical basis affects water distribution in Las Vegas, New Mexico. Recently, historians have examined water allocation laws and customs in California and New Mexico and found no evidence of a preference in water allocation for settlers living within towns.4

The concept of prior appropriation adopted in New Mexico in 1912 is similar to the Pueblo Rights Doctrine. Under prior appropriation the first historical use gets a preference in water allocation to the exclusion of later uses, similar to the preference given to qualifying communities under the Pueblo Rights Doctrine. Neither method of water allocation is historically accurate.

It is notoriously difficult to prove a negative proposition, i.e., that there is no historical authority for prior appropriation or the Pueblo Rights Doctrine. Instead, in my article "Sharing the Shortages," I have tried to look at all the water allocation regulations and disputes in New Mexico between 1600 and 1850 and determine which criteria did determine the outcome of a water-sharing regime. Historian Michael Meyer has identified seven criteria in the cases he studied throughout the southwest and into central Mexico, but only two of those seven were crucial in the New Mexico cases: prior use and need. Often these principles would be juxtaposed in a lawsuit, with one irrigator claiming to have been first to irrigate on stream system and others pointing out the necessity of irrigating their fields for their survival. The result of most of these cases was a regime of water-sharing based on need. Unlike today's doctrine of prior appropriation, which has a winner-take-all aspect to it, prior use was just one factor that was taken into account. In almost every case I studied, each party was allowed some water in times of scarcity. (In one or two cases in Taos Valley, strong absolutist language was used by the local alcaldes in regard to prior use, but in practice all parties to the litigation continued to share water.)

I have continued my research into water disputes involving allocation of water into the territorial period and found a similar situation. While there were lawyers representing the parties and making new arguments during the territorial period, in most cases the judges ordered a water-sharing regime. Sometimes judges would appoint a special master to measure the irrigated acreage of the parties to make a more precise determination of need. In the cases I have studied, no reference to prior appropriation was found in any water allocation decree.

Though the prior appropriation water allocation scheme may not be changed, its administration can be modified to soften its impact. When the State Engineer's hydrographic survey attempts to determine the amount of irrigated acreage of a parciante or acequia irrigator, the presumptions should be in favor of the irrigators. If they can show evidence that a tract of land has been irrigated by the nature of the plant growth or the land, the presumption that water rights have not been abandoned should be invoked.

The lesson of history regarding land and water adjudication is that it is easier to create a bogus historical doctrine than it is to get rid of it. The mythical Pueblo Rights Doctrine was recently declared invalid by the New Mexico Court of Appeals, yet the New Mexico Supreme Court has yet to pound a stake through its heart. Some still believe the Pueblo Rights Doctrine is good law and it has been used against the Las Vegas, New Mexico acequias. But historians agree that it is bad history.

The way to get rid of bad history, history that is concocted just to make a legal point, is to write accurate, balanced history which allows us to find out what really happened. It is time to write that history so that our grandchildren will not be compelled to battle new distortions of history which, like evil spirits from the past, refuse to die.

1 US v Sandoval, 167 US 278 (1897), discussed in Ebright, Land Grants and Lawsuits in Northern New Mexico, pp. 105-123.

2 This decision is discussed in Ebright, Land Grants and Lawsuits, pp.127-138.

3 Malcolm Ebright, "Sharing the Shortages: Water Litigation and Regulation in Hispanic New Mexico, 1600-1850: New Mexico Historical Review, 76 (January 2001): 3-45.

4 Daniel Tyler, The Mythical Pueblo Rights Doctrine: Water Administration in Hispanic New Mexico (El Paso: Texas Western Press, 1990).

ANNOUNCEMENTS

The American Farmland Trust and the Rio Grande Headwaters Land Trust are sponsoring an all day workshop on Land Evaluation and Site Assessment (LESA) methodology in Alamosa, Colorado, on August 14th. LESA is a numerical system for rating the soil and site conditions of farm and ranchland as a planning tool for communities. The system combines soil survey information with socio-economic criteria to rate agricultural lands for inclusion in voluntary land protection programs. This workshop is geared to agency staff, county representatives, conservation organizations and others who could implement the program at the county level. LESA systems have been used to determine how proposed development will affect the agricultural stability of surrounding parcels, choose farm units to be included in an agricultural land protection program, and implement local land use planning. The workshop will be held at the Holiday Inn (just east of the Rio Grande on the north side of Highway 160 in Alamosa) from 8:30 am to 4:00 pm. It is free, and all participants will receive the Soil and Water Conservation Society LESA manual. Lunch will be provided. If you are interested in attending please contact Julie Gallegos at 719 852-4015, Rio Grande Headwaters Land Trust, 0881 North Highway 285, Monte Vista, Colorado, 81144.

• The Camino Real Ranger District is beginning an analysis of the Knob Allotment and is requesting public comments. The current annual grazing permit is for 50 cow/calf units with a grazing season of July 1 to September 20, or 135 head months. The current rotation system is a five pasture deferred rotation system; each pasture is used but at a different time each year. The proposed action is a ten year grazing permit for 40 cow/calf units, or 122 head months, with a grazing season of June 20 to September 20. The Knob analysis was started in 1996 but never completed. Comments submitted at that time will be included in this scoping effort. Please contact Melvin Herrera or Cecilia Seesholtz at 587-2255 or P. O. Box 68, Peñasco, NM, 87553.

• If you went to the web to look up Malcolm Ebright's article "Sharing the Shortages" from the New Mexico Historical Review and couldn't find it, an abbreviated version is now there: http://www.southwestbooks.org/sharing.htm.

Editorial: Tom Turney, Prophet or Pirate?

By Mark Schiller

A recent editorial in one of New Mexico's major daily newspapers compared State Engineer Tom Turney to a "biblical prophet" preaching the gospel of a new enlightened era in water use. Ironically, this so-called new era will simply perpetuate the same kind of exploitation and disenfranchisement the federal and state governments have subjected land grant communities to since the Treaty of Guadalupe Hidalgo in 1848.

In part, the editorial contends that agriculture uses "a disproportionate amount of New Mexico's water, perhaps as much as 80 per cent, while amounting to only about 3 per cent of our state's gross domestic product." This is an error in both fact and outlook. In the first place, agriculture does not consume 80 per cent of New Mexico's water. This is a deliberate misinterpretation of the facts which environmental groups such as Forest Guardians have been trying to promulgate in order to place the entire blame for low stream flows which threaten endangered species solely on the backs of farmers. The truth is that agricultural water rights account for 80 per cent of the diversionary surface water rights in the state, but are credited by the State Engineer's Office (SEO) with a 50 per cent return flow credit, meaning that even by the SEO's standards, agriculture consumes only 40 per cent of the water. Many diversionary rights such as those for metropolitan areas are given a much higher return flow credit for treated wastewater, which they return to the river.

In the second place, the gross domestic product statistic is also misleading. It fails to account for the many subsistence farmers in el norte who count on irrigation water for their gardens, orchards, and pastures which put food on their tables rather than money in their pockets.

Finally, and most importantly, there is the larger question which David Benavides discussed in our February 2001 issue: "Who should benefit from the sustainable management of a resource?" He went on to say, "The question of how to ration water to get to a sustainable level is a question of environmental justice. The principles of environmental justice encourage us to choose, among all the environmentally sustainable options for resource management, those options that address the most important issues facing society, particularly issues of inequity, poverty, and lack of opportunity."

The heirs to the rural land grant communities have been cheated out of their common lands, denied access to essential resources, and politically disenfranchised. Their water rights and the fields to which they are attached are the essential resources upon which economic revitalization of these rural communities depends. Now the State Engineer is being labeled a prophet for giving warning that parciantes better be prepared to voluntarily give up a substantial portion of their diversionary rights or the federal and state governments will strip them to address endangered species issues and interstate and international delivery obligations. Instead of lecturing parciantes the State Engineer should be reminding the federal government and the state legislature that the Treaty of Guadalupe-Hidalgo and the New Mexico State Constitution guarantee the water rights of land grant communities. International treaties trump federal laws such as the Endangered Species Act (ESA). Moreover, many norteños, including former Lieutenant Governor Roberto Mondragon, are arguing that they are an "endangered species" being threatened by the destruction of their "critical habitat" and that the ESA should be invoked to protect them.

Let's not forget that the State Engineer is the same man who stated that it's his intention to make it easier to transfer water from lower value uses (agriculture) to higher value uses (industrial and metropolitan). I suspect that in the wake of the judicial decision ordering state and federal authorities to meet endangered species critical habitat instream flow levels in the middle Rio Grande, the State Engineer saw this as a convenient stick with which to threaten parciantes and achieve his agenda. This notion is strengthened by the fact that the State Engineer is not using the same hard line tactics with Intel or the cities of Albuquerque, Santa Fe, and Rio Rancho, that hold junior water rights, which according to state law, should be called in to maintain stream flows before any senior upstream agricultural rights. Unorganized, low income parciantes are a less formidable adversary than municipalities and industries which all have lawyers on staff to protect their interests.

I've been told that the State Engineer is taking body guards with him as he makes these "prophetic pilgrimages" around northern and central New Mexico to preach the new gospel of water usage. Maybe he's thinking that if you're going to rob and cheat people it's best to have enough fire power on hand in case somebody has the nerve to object. Can I get a witness?

Oral History: An interview with the Acequia Abajo de El Valle Commissioners and Mayordomo: Clarence Mascareñas, Arsenio Montoya, and Tomás Montoya

The Acequia Abajo de El Valle Commission is preparing for a major renovation of its presa, so we asked the commissioners and mayordomo to share some of their memories of the acequia and life in el norte in the mid-1900s: mayordomo Tomás Montoya and commission president Arsenio Montoya were both born and raised in El Valle; commission secretary Clarence Mascareñas was born and raised in Vadito and retired to El Valle.

"Our lives were simple and hard, but good," Clarence said. "Nobody had any money, but you didn't need any."

Everyone in the mountain villages grew wheat, corn, avas, peas, calabacitas, pumpkins, and even tobacco and sugar cane, which they made into syrup. Orchards provided peaches, apples, cherries, plums, and capulins.

"We traded flour and corn for melons and chiles from Chimayó," Arsenio said. "Our bellies were full of good food, not the junk you get today. And if anybody needed anything, we all shared our food."

Almost every village had its own molino (grain mill). El Valle actually had two molinos, and the molino in Vadito was a maquinaria, a larger mill that produced several grades of flour, wheat germ, and bran.

"My family could mill 9 one hundred-pound bags a night, saco rallados," Clarence said. "We used the water for irrigation during the day and for the molino at night. Bran was sometimes given as payment, and we fed it to our hogs, which we then traded for salt and sugar.The families that came late in the afternoon, we put them up for the night. People came from all over, a lot of them from Dixon. My grandfather and then my father operated the molino until 1947, and unfortunately, in 2000 it burned down."

The Mascareñas maquinaria in Vadito

Many of the communities also had their own sawmills, including El Valle.

"I remember walking across the river to the sawmill with my dad when I was about 12 years old to get lumber. We just walked across the river, there was no bridge," Clarence said.

All three men said that the El Valle acequias have been in the same place as long as they can remember. They speculated on how old they might be, and that if they were able to determine how old the original church was that would help determine the priority date for the acequias.

The Acequia Abajo parciantes, including Scottie the dog

"Maybe the church in El Valle was older than the one in Las Trampas," Tomás said. "When we had to rebuild the church we dug around carefully to see if we could find some date where they recorded when they built it, but we never found anything."

"One thing that was different about the acequias was that the meetings were a lot shorter," Clarence laughed. "In ten minutes or so they decided who would be the mayordomo and the commissioners. They bonded each other for $10."

"There was no argument," Tomás added. "Not like now."

The acequias provided not only irrigation water but all the domestic water as well. Electricity didn't come to El Valle until the 1950s when everyone began using wells for their household needs.

Arsenio Montoyo and Tomás Montoya cleaning the Acequia Abajo

"I do remember a few wells in Vadito, one that went down 60 feet," Clarence said. "They would have to be lowered down in the bucket to clean it out and could barely see the opening of the hole."

"Nobody ever got sick drinking the acequia water," Arsenio said. "But mothers would boil the water for babies."

Tomás said, "I still drink water from the river!"

Water from the Rio de las Trampas and Rio San Leonardo was shared with the villages of Las Trampas and Ojo Sarco, as it is today, except that the villages would take turns on a rotation of days.

Because most of the men had to leave the villages to find work as sheepherders, miners, and loggers in Colorado and Wyoming, the village women often served as mayordomas and comisionadas.

"David Lopez's mother, Elvira, used to patrol the ditch in Las Trampas with her shotgun," Arsenio said."Our mother was a comisionada. The women had to do all the farm work while the men were gone."

The kids did their share of work, too. Because there were no fences separating people's property, village children were assigned the task of taking the cows, goats, and sheep up to the mountains during the day so they wouldn't eat the crops, and bring them home in the evenings. When all the crops had been harvested, the animals were turned loose to clean up the fields.

The men agreed that things really began to change in their villages after World War II when the cash economy reached el norte.

"When Los Alamos started up and people went to work there they quit planting and they let everything go," Arsenio said.

The Montoyas left El Valle in the 1950s to go to work in California in the tomato canning factories and lumberyards, where they stayed until the early 1960s. Tomás also worked in the mines in Gilman, Colorado. Arsenio moved to Chimayó in 1962 and said he would like to come back and live in El Valle (he maintains property there) but his wife wants to stay in Chimayó.

Tomás laughed at that. "No woman will ever pull me out of here."

Clarence, who started work as a logger at age 15, left Vadito in 1963 and ended up in Boulder, where he worked as a fireman until his retirement. He and his wife Naomi, who was born and raised in El Valle, retuned to live there.

"The Santa Barbara Pole and Tie Company was gone by the time I started to log, but my uncle Margarito worked for them to maintain the flumes where they sent the logs down to the river," Clarence said. "Do you know that they took the water from Vadito to Mora without the people even knowing? One day there was water for logging and then suddenly the water level dropped and the commissioners had to go and find out that they'd built a canal to take the water all the way to Mora. We lost the court case on that.

"When we started being dependent on the tourist economy our lifestyles became worse. Some of the people who catered to that industry made money while everyone else lost out," Clarence continued. "People don't realize that the money the tourists spend isn't necessarily going to benefit them. The tourists buy their gas and necessities in other communities, where it's cheaper. Meanwhile, the local people have to pay the higher prices that result from the tourism."

Arsenio added, "In the old days we didn't pay much in taxes. Now with these people coming in and building big fancy houses, the taxes go up for all of us. Pretty soon people will have to move because they can't pay their taxes. I've heard they're buying places in Truchas for $250,000."

All three men agreed that there should be a provision in the tax laws that prohibits an increase in taxes on those properties that remain in the same family, and can only be increased if the property is sold.

"In Chimayó, three-quarters of an acre goes for $50,000," Arsenio said. "People come from California who made a lot of money there when they sold their houses and can afford to buy anything here. What are our kids supposed to do?"

Editorial: Where are the Restoration Projects?

By Kay Matthews

In last month's La Jicarita we wrote an article on the New Mexico Community-Based Forestry Alliance, a coalition of community foresters working to improve the social and economic health of forest dependent communities. The Alliance is currently trying to establish a collaborative partnership with the Forest Service on forest restoration projects, particularly wildland/urban interface projects, which are being funded by various federal grants.

As we pointed out in the article, establishing these partnerships is fraught with difficulties: a flawed federal granting process which often fails to get the money to the community groups doing the on-the-ground work; and the lack of NEPA (National Environmental Policy Act) ready projects where the foresters can get to work.

This latter difficulty has proved to be even more problematic than the Alliance anticipated. After consulting with the Pecos District Ranger at its last meeting, the Alliance decided to propose the high profile Gallinas Watershed restoration project to begin the collaborative process. But after a recent tour of the area, where the group had been led to believe that several thousand acres were NEPA ready, the foresters found out that the district was only offering them 70 acres that had been cleared for restoration thinning.

Unfortunately, this seems to be the case on almost every ranger district in el norte. Despite the acknowledged need - forest overstocking of small diameter trees on thousands of acres - and the increased amount of federal dollars earmarked for restoration and wildland/urban interface treatment, only small restoration projects are NEPA ready.

There appear to be several reasons for this. For at least a decade before the devastating fires last summer that threatened communities throughout the west, Forest Service budgets were being cut back as timber dollars, the raison d' etre of that agency, were redirected to other areas, particularly recreation. Timber staffs were cut, archeologists and biologists were reassigned (on the Carson National Forest a single team of personnel who are responsible for NEPA work and oversight must cover the entire forest) and seasonal crews like the Youth Conservation Corps became almost non-existent.

What developed is a Catch-22 situation. The Forest Service, which was being punished by the conservative western congressional delegation over the flight of the timber barons to private land, now had no money or staff to address the fallout of decades worth of over cutting by these same barons: millions of acres of small diameter trees that have encroached upon grasslands, inhibited groundwater recharge, and created a monoculture forest.

A certain amount of creative planning has enabled districts to redirect some of the money allocated for watershed restoration and recreation to actual thinning projects. But now that Congress has increased funding directly earmarked for restoration work in response to the fires, the Forest Service has very little acreage NEPA ready because of the previous decade"s lack of funding. And to further complicate the issue, the new federal money is earmarked for "new" sites, when the Forest Service doesn't even have "old" projects ready (about the only areas of any size that are near ready to go are in the Vallecitos Sustained Yield Unit).

Of course, as the necessary EAs and EISs for restoration projects are completed, they are subject to appeal, and our friendly environmental groups Forest Guardians (FG) and Forest Conservation Council (FCC) are out there ready to do just that. As a matter of fact, FG sent a July 6 letter to the Department of the Interior and the Department of Agriculture notifying them that the group intends to sue within 60 days if they don't remedy the environmentalists' claim that Fish and Wildlife violated the Endangered Species Act (ESA) by "failing to use the best available scientific data in issuing a no jeopardy opinion for Mexican spotted owls" in 283 proposed wildland/ urban interface treatment projects covering 1.8 million acres of national forests in the southwest.

What they intend to enjoin is unclear, however, as the Forest Service submitted an opinion, or Biological Evaluation, not a decision, to Fish and Wildlife asking for an evaluation of the potential impacts on the spotted owl if every project prescription was written to ensure that firefighting forces could defend communities. This would entail a heavily thinned area surrounded by buffer zones that they calculate would impact 7% of spotted owl packs. The NEPA work on these projects hasn't even been started (which has to include a two-year survey of owls) and EAs for each separate project will determine the final prescription. Forest Guardians and FCC are threatening to sue over an opinion, not a decision, seemingly to raise the issue before the public and generate controversy and opposition. But it's obvious that they are prepared to appeal each wildland/ urban interface project once it becomes NEPA ready and a decision is made, regardless of what the prescription is, who is doing the restoration work (community foresters or commercial companies), and who benefits from the project, both economically, socially, and environmentally.

Forth Annual Taos Valley Acequia Festival

September 15, 2001

Heritage Fair: 12:00 - 6:00 pm (Free Admission)

• Farmer's Market • Food Booths

• Arts & Crafts • Educational Exhibits

• Tio Vivo and Other Children's Activities

Evening Concert: 7:00 - 11:00 pm ($25 Adult; $15 Youth)

• SPARX y Lorenzo Antonio

• Al Hurricane & Al Hurricane, Jr.

Raffle Grand Price $10,000 (and many more)

Taos County Agricultural Center

202 Chamisa Road, Taos

(turn west off Paseo del Pueblo Sur next to the Sagebrush Inn and follow signs)

(505) 758-9461

Festival proceeds benefit the Taos Valley Acequia Association

Nuestras Acequias - Vida, Cultura, Tradicion