I’m Dismissed as Protestant: It’s a Lawyer’s Game

By KAY MATTHEWS

I struck out. The Office of the State Engineer (OSE), at the behest of El Prado Water and Sanitation District, once again declined to hear a protest based on the concept of Public Welfare, one of the three criteria that a water appropriation/transfer protest must be based. Public welfare has never actually been legally defined in case law in a water rights decision and is seen as a Pandora’s Box. The folks whose special interests have been met by the terms of the Abeyta Settlement don’t want any scrutiny of those transactions, and bureaucracies like the OSE don’t want to open the flood gates (pardon the pun) to protests that might define what Public Welfare means when it comes to moving water around the state.

The letter saying I’m “dismissed” as a protestant to the water appropriation and water transfer applications by El Prado Water and Sanitation District wasn’t a surprise. To recap, as a party to the Abeyta Settlement, or Taos Pueblo Adjudication, El Prado is seeking to increase its water rights from 25 to 575 acre feet per year (afy) by adding two deep wells to its system 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 and the Department of the Interior, which seek to transfer them to the Pojoaque Basin as part of the other big northern New Mexico adjudication settlement, the Aamodt.

The Taos County Board of Commissioners protested the application to transfer water rights to offset the new wells, based on the recommendation of the Taos County Public Welfare Advisory Committee. This committee was created by the Taos County Public Welfare Ordinance to review all water transfers from and within the county to determine if they are in the public interest of county citizens. The Advisory Committee recommended to the county commission that it protest the application to appropriate water from the two new wells as well, but the commission didn’t meet in time to review the recommendation. As a member of the Advisory Committee I protested the transfer as an individual in an attempt to bring both of these applications, which are part of the same project, before the scrutiny of the OSE, and the public.

Jim Brockman, attorney for El Prado, challenged my standing to protest several months ago, but after an oral hearing before the OSE Hearing Officer I was allowed to continue in the process (see my January 5 article in La Jicarita). Then Brockman asked for reconsideration of that decision, and this time I lost.

The Water Rights Division (WRD) of the OSE wrote the 13-page response to El Prado’s request to dismiss me. They didn’t bother to consider my arguments that drilling new wells to meet El Prado’s enormous increase in water use, and transferring water from northern Taos County to offset the pumping of those wells, is not in the best interests of the citizens of Taos County. Instead, they linked the concept of public welfare to that of impairment. The WRD insisted that had I proved I own a valid water right I might have met the evidentiary burden to show I would be “substantially and specifically impacted” by the appropriation and transfer, which is the statutory requirement for standing on impairment.

But I repeatedly stated in in my protest, and during oral arguments, that I was not basing my protest on impairment, even though I am a valid water right owner, but on the criteria of public welfare. It is also the requirement for standing on that issue to prove that I would be “substantially and specifically impacted,” but they didn’t consider any of the evidence I presented in my protest or in my oral hearing. The WRD denied me standing saying that the Hearing Officer’s previous decision to grant me standing on impairment because I proved a “minimal amount of information” regarding my ownership of water rights doesn’t meet the standard of “substantial and specific” impact.

Confused? So am I. As far as I can figure, the WRD is using a Catch 22 to get rid of me: because I failed to prove I have water rights, even though I wasn’t arguing impairment, I don’t have standing to argue Public Welfare.

However convoluted this entire process has become, the intent is very clear: El Prado and the other parties to the Abeyta Settlement don’t want any oversight on the behind closed door deals they made and the state doesn’t want anyone messing around in the settlement either. Another protest in the Abeyta Settlement is still in their docket: the transfer of water rights from the Llano Community Ditch in Questa to the Acequia Madre del Rio Lucero y del Arroy Seco in the Taos Valley. Palemon Martinez, president of the Taos Valley Acequia Association, is the president of this acequia as well, and one of the most vociferous opponents to the promulgation of the Taos County Public Welfare Ordinance. The Llano Ditch, along with the Cabresto Irrigation District, the Town of Red River, and several individuals, protested this transfer of more than 183 afy for which the state has appropriated $200 million as part of the Abeyta Settlement. Lawyers are challenging the standing of Cabresto and already got an individual denied standing. A hearing is scheduled for later in the year.

But there was also some good news in the WRD response. The agency seems to be just as annoyed with El Prado and Jim Brockman as the rest of us are. In Brockman’s motion to reconsider my standing, he accused the Hearing Examiner of departing from historical OSE practices on standing determinations, claiming that protestants have to prove their standing in their written protests. The WRD letter refuted that assertion, citing state statute and saying it would “raise due process issues.” In a revealing footnote the letter states: “El Prado’s contention that the WRD and Hearing Examiner have departed from longstanding agency positions is inaccurate. Instead, El Prado is making the same arguments for changing OSE practices as have been presented by El Prado’s counsel [Jim Brockman] in other cases in which they represent water rights applicants.”

Brockman also complained in his motion for reconsideration that my protest had placed an undue burden on El Prado. The WRD reminded him that the burden of proof in any protest lies upon the applicant. Whether or not the protest goes forward it is incumbent upon any applicant to “prepare for and present evidence . . . on all statutory bases” before the OSE before the application can be granted.

Today in Taos, during the County Commission meeting, there was a work/study session to discuss the county’s protest of El Prado’s water transfer application. The session was requested by Jim Brockman, who will try to persuade the county to drop the protest. Members of the Public Welfare Advisory Committee and I were there to defend the protest; the public participated in the discussion as well—a typically contentious meeting. The commissioners will meet again to decide if they want to maintain the protest; maybe Taos County will be the first region to actually challenge the powers that be over special interests, back room deals, and the rapid escalation in the movement of water out of its area of origin. In the meantime I’ll do a follow up report on some of the interesting things that came out in the meeting.

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