How Far Can a Lawyer-less Protestant Get?

By KAY MATTHEWS

As I’ve documented in previous La Jicarita articles, protests have been filed against several proposed water transfers in the Taos area. Pursuing a protest is like participating in a trial: there is a pre-hearing conference to set a schedule; both protestants and applicants must provide a witness list, proceed with discovery, call witnesses, etc.; and finally there’s a hearing before an officer of the Office of the State Engineer (OSE), the agency that approves or disapproves transfers. To wend your way through this process you obviously need a lawyer. Or not. You can represent yourself, just as you can in a court of law, but it ain’t easy. As a protestant to two of the these Taos area water transfer applications I decided to see how far I could get without official representation. (Disclaimer: I’ve solicited the advice of some of my favorite water lawyers who never work for the dark side.)

I’m the former chair of the Taos County Public Welfare Advisory Committee, which was established by county ordinance in 2010 and is charged with determining if a proposed water transfer is in the best interest of the citizens of Taos County based on criteria that define the public welfare: cultural protection, agrarian character, ecological health of watersheds, long-term economic development potential, recreational tourism, public information, water supply management, conservation, conjunctive management, and minimizing water contamination. The Committee then makes a recommendation to the Taos County Board of Commissioners as to whether the board should or should not protest the proposed transfer to the OSE.

Public welfare, one of the criteria the OSE uses to assess a transfer, has never actually been legally defined in case law in a water rights decision. That’s why the New Mexico State Water Plan encouraged regional water plans to come up with definitions of public welfare pertinent to their regions.

The Taos Regional Water Plan did just that: it came up with a public welfare definition and proposal to establish a public welfare review committee. After years of planning, however, the proposal was squashed by Taos County politicos and special interests. These folks want unfettered leeway to move water around to the “highest and best” use”, which essentially translates to urban development. The other folks who didn’t want there to be a review committee as part of the regional water plan are parties to the Abeyta, or Taos Pueblo water settlement. Unbeknownst to the general public at the time of the settlement negotiations, this agreement depends on the movement of water, mostly from the northern part of the county, to several of the adjudication parties.

Taos County then stepped up and promulgated and enacted a Public Welfare Ordinance that set up the Taos County Public Welfare Advisory Committee that I chaired for three years.

One of parties to the Abeyta settlement is El Prado Water and Sanitation District, which is seeking an increase from 25 to 575 acre feet of water per year (afy) from two deep wells that will be drilled near U.S. 64 and the Gorge Bridge, supposedly tapping into the Rio Grande Basin. This new appropriation of water will have to be offset by the transfer of other water rights, which the district is seeking from the Top of the World (TOW) area north of Questa. You may recall that over a thousand afy of TOW water rights belong to Santa Fe County, which seeks to transfer them to the Pojoaque Basin as part of the other big northern New Mexico adjudication settlement, the Aamodt.

The town of Taos pushing up against the Sangre de Cristos
The town of Taos pushing up against the Sangre de Cristos. Wikipedia photo

As we’ve often pointed out in La Jicarita, and others have argued as well, these kinds of transfers are paper transfers: there is no guarantee that unused groundwater in the TOW area will migrate to the Rio Grande and flow downriver to the “move-to” areas—in El Prado’s case the two new deep wells and in the Aamodt case as surface water in the Pojoaque Valley. In order for a transfer to involve “real” water there needs to be a proven hydrological connection between the “more from” and “more to” area. In the case of the TOW water there are conflicting claims as to how much and how fast the underground water will migrate to the move-to areas.

After reviewing the El Prado applications under the criteria of the Public Welfare Ordinance, the Taos County Advisory Committee recommended to the Taos County Commission that it protest El Prado’s application to transfer the northern New Mexico water rights as offsets, which it did. I also protested this application as an individual, as well as El Prado’s other application to appropriate water from the new wells. The committee had also recommended to the county commission that it protest this application, but the commission didn’t hold a hearing in time to file its protest before the OSE deadline.

Open space north of the town of Taos.
Open space north of the town of Taos

Several other folks also filed protests with me, but in the end decided that without legal representation it would be too difficult to pursue their protests. So now I find myself a protestant to two applications: Taos County is a co-protestant on the transfer of water from the TOW area but I’m alone on the application to appropriate underground water from the wells.

So far I’ve participated in two pre-conference hearings with the applicant El Prado, its lawyer James Brockman, the OSE lawyer Brett Olsen, folks from the OSE water rights division, the OSE hearing officer, the Taos County Attorney Bob Malone, and I’m not quite sure who else because they let me participate by phone. I live an hour away from Santa Fe in El Valle. In the two different phone calls, Brockman explained the terms of the each application, Bob Malone and I explained our opposition to the applications, and then we spent almost an hour discussing the schedule for each hearing. The hearing dates were set for June of 2015.

As I participated in these phone calls it became distressingly clear how difficult it is for an individual to devote the time and study necessary to come up with a list of witnesses to help defend his or her position, interview them, take their statements, appear at oral hearings, etc. That’s what Brockman and his staff get paid to do. That’s what Brett Olsen, the OSE attorney, and his vast OSE staff, get paid to do.

If Taos County continues as a protestant I will no doubt resign from that protest. By “continue” I mean that it’s up to the county commissioners to agree to proceed. Tom Blankenhorn, the commissioner whose district includes El Prado, has already expressed his misgivings about the protest. As chair of the advisory committee I tangled with him at several public hearings over the committee’s recommendation. And several new commissioners come on board in January.

I may not get too much further on the second protest, either. At the end of one of the pre-hearing conferences Brockman announced that El Prado was going to challenge my standing as a protestant. Which they did in a formal motion, claiming under state statute I don’t meet the criteria of being “substantially and specifically affected by the granting of this application.”

I am being challenged to show how the application will “substantially and specifically” impact me. Am I the public in the concept of public welfare? In my response to El Prado’s motion to strike me as a protestant (I had 15 days to deliver my response upon receipt of their motion), I laid out how I, as an individual, would be affected under the criteria included in the public welfare ordinance. For example, I argue that the transfer of agricultural rights to underwrite development along the El Prado corridor will threaten both the traditional agricultural communities and the natural resources that make the Taos area, including the village of El Valle where I live, so unique and valuable.

But I also argue that as a citizen of Taos County I am affected by any water transfer application that is deemed detrimental to the public welfare of Taos County as defined in the Taos Regional Water Plan and Taos County Ordinance 2010-4. This particularly applies to the water transfers from the TOW region, where the water rights in question could be better put to use in their area of origin. The village of Questa needs to acquire additional water rights; it is currently leasing water from the TOW rights owned by Santa Fe County that will be transferred to the Aamodt settlement.

Several acequias near Questa are also protestants to a water transfer application that’s part of the Abeyta settlement. This application, by an association of 12 acequias in the Valdez and Arroy Seco area of Taos Valley, seeks to transfer 183.183 afy from the Llano Irrigation Community Ditch in Questa. This association, the Acequia Madre del Rio Lucero y del Arroyo Seco, has contracted with Laurence Ortega of Questa for the water rights from the Ortega’s estate that were severed from the land in the 1960s. As far as I can tell the water rights were intended to serve a proposed subdivision that never came to fruition, but no one I’ve asked has been able to confirm that. Palemon Martinez, chairman of the board of the Taos Valley Acequia Association, negotiated the transfer of water rights to the association, of which he is Secretary. The Abeyta Settlement allocates up to $2 million for the purchase of water rights for the acequia.

I just got El Prado’s response to my response regarding my standing to protest. No surprises there: the attorney argues that as an individual I can’t prove I have a “personal stake in the outcome of the case that would establish standing.” Instead, he implies that because my “real motivation” is to support the Public Welfare Advisory Committee’s recommendation that El Prado’s applications are contrary to the public welfare of the citizens of Taos County, my protest is underhanded and without merit. He also spends a portion of the response arguing that I can’t prove impairment of my water rights, despite the fact that I raise only the issue of public welfare, not impairment, in my protest. The OSE will make a decision whether to schedule oral arguments on this motion.

I also just got a copy of a letter from the OSE to all the parties stating that because one of the protestants, Jeanne Denver, didn’t pay the filing fee or show up for the pre-hearing conference, she has been dismissed as a protestant. As everyone in Taos County knows, Jeanne Denver was Butchie Denver’s real name; Butchie died in June of 2012. Butchie was the driving force behind the promulgation of the Taos County Public Welfare Ordinance, and like me, protested the El Prado applications to make public the concerns we have over these kinds of transactions. So I guess you could say I’m hanging in there for Butchie as well as the public welfare of citizens of Taos County.

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2 comments

    • Heather,

      Once Santa Fe County and the U.S. Bureau of the Interior apply to the Office of the State Engineer to transfer the approximately 1,000 acre feet (afy) of water from Top of the World Farms to the Pojoaque Valley to meet the terms of the Aamodt Settlement, Taos County, other groups, or private citizens can file protests. The Taos County Public Welfare Advisory Committee will review the application and make a recommendation as to whether the county should protest based on the Public Welfare Ordinance. Others can base their protests on the other two criteria the OSE uses to deny a transfer: if it impairs someone else’s water rights or is contrary to the conservation of water. There will no doubt be many protests filed, and although I’m no longer a member of the Public Welfare Advisory Committee I would hope it recommends that Taos County protest the application.

      Kay

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