A Room Full of Lawyers: Water and Natural Resources Committee Weighs in on the Rights of Protestants

By KAY MATTHEWS

U.S. District Court Judge Martha Vazquez overruled all objections to the Motion to Approve Partial Final Judgment and Decree on the Water Rights of Taos Pueblo on July 30 (the Abeyta Adjudication Settlement). The only recourse now is for objectors to file an appeal.

The New Mexico Legislative Committee on Water and Natural Resources came to Taos on July 27 and 28 to hear from panels of experts on water issues that included the parties to the Abeyta Settlement. That hearing was more like a congratulatory party than a real attempt by the committee to dig a little deeper into the terms and fairness of the settlement. Despite the controversies surrounding the agreement—transfers of water rights from Top of the World Farm and a Questa acequia, new, deep wells, and the substantial amounts of state money that will underwrite these transfers—all the parties to the settlement got resounding pats on the back for a job well done.

The Water and Natural Resources Committee also heard testimony on Senate Bill 665 that was introduced in this year’s session (it didn’t pass) that would change the requirements for filing a protest of a water transfer or appropriation with the Office of the State Engineer (OSE). This particular hearing also had a congratulatory element, as various jokes were made by the committee regarding the number of lawyers who were in attendance, at one point calling the issue a “cottage industry” for attorneys. Senate Bill 665 proposed to change the regulations in three ways: 1) require that a protestant provide evidence of standing “up front” in the protest letter submitted to the OSE; 2) limit the participation of a protestant to those issues identified in the letter of protest; and 3) allow applicants to request the recovery of attorney fees and costs for “frivolous” protests.

At the committee hearing Attorney Jim Brockman, of the Stein and Brockman law firm, spoke to the committee in favor of the bill. That law firm has represented many transfer applicants, primarily urban and corporate interests, and has been one of the driving forces behind this attempt to limit due process in water transfer protests.

County Commissioner Paula Garcia. Coalition of Counties photo
New Mexico Acequia Association director Paula Garcia. Coalition of Counties photo

Attorney Connie Odé and New Mexico Acequia Association director Paula Garcia testified that OSE regulations, as currently written, provide important protections of the public interest. Section 72-2-17 of the Water Code provides specifically that in the conduct of State Engineer hearings, “opportunity shall be afforded all parties to appear and present evidence and argument on all issues involved,” and “a party may have and be represented by counsel and may conduct cross-examination for a full and true disclosure of the facts.”

They pointed out that because political subdivisions of the state (acequias or mutual domestics) have automatic standing to protest and participate and cannot be restricted in the evidence or arguments they can present, other parties and individuals should be accorded these same rights.

As for allowing applicants to recover attorney fees and costs for “frivolous” protests, this would have a “chilling effect” on public participation. The definition of “frivolous” is wholly subjective, and there already exist adequate remedies to determine early in the process both the basis of a protestant’s standing and the nature of the claims.

State Senator Joseph Cervantes
State Senator Joseph Cervantes

In the ensuing discussion by the committee, Senator Joseph Cervantes, D-Las Cruces, called the proposed bill a type of “slap suit legislation,” referring to an action against the public to inflict punishment for protesting and deter opposition. This seems to be Brockman’s intent. As La Jicarita has previously reported, Brockman currently represents El Prado Water and Sanitation District, one of the parties to the Abeyta Settlement, and challenged my standing as a protestant to the district’s proposed application to appropriate water from two deep, Rio Grande wells near the Gorge Bridge.

In one of his motions to dismiss my protest Brockman complained that the Hearing Unit of the OSE has made the procedure “a more complicated, expensive, and time-consuming multi-step process,” that protestants should be confined to just those issues upon which they have established standing, and consequently that the OSE has “a very expansive standard that assures that nearly every protestant will be able to withstand a challenge to his or her standing.” In its response to Brockman’s motion, the OSE reminded him that it is the applicant who has the burden of proving all issues in an OSE hearing, that they’ve heard these same arguments by Brockman in other cases in which he represents applicants, and that the OSE seeks to ensure “ordinary citizens protesting pro se” receive a fair hearing. “Thus, protestants are not, initially, required to address sophisticated legal doctrines on standing in order to participate, nor must they present scientific and historical analyses on impairment. For the State Engineer to require this from protestants a mere 10 days after notice by publication would be unrealistic and unfair.”

Attorney Jim Brockman and El Prado Water and Sanitation District members Telesfor Gonzales and John Painter
Attorney Jim Brockman addressing the Taos County Commission on January 27, 2015, in defense of the Abeyta Settlement. Robin Collier photo

Unfortunately, despite what appeared to be an OSE defense of my protest, I was dismissed because, as I explained in my January 27 La Jicarita article, the agency didn’t want to hear a protest based on the criteria of public welfare. So they simply concluded I didn’t meet the criteria for impairment, an argument I never raised.

We’ll see how Taos County’s protest against the Top of the World water transfer application plays out. As a subdivision of the state, the county has automatic standing but will be arguing that the transfer is contrary to public welfare. Several of the other five protestants (four other protests were deemed untimely because the OSE failed to receive hard copies of the protest letters by the deadline) will also raise the issue of impairment.

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One comment

  1. One of the stipulations to acquire Federal and State funding for the settlements was that, water rights had to be in place, the transfers were going thru before they were protested because our two Senators Cisneros and Gonzales acquired the Federal monies before the State legislative hearing that’s why it sounded like a celebration. Our two Senators played the Commons the County and the Taos County Water Advisory Committee.That is why I removed myself from the TCWA. We protested for nothing…….. Just to make the County look good to the Commons. Taos County Commissions’ are a joke…….. Political Ratas. And so is our State Engineer……. sad for Northern NM to have to trade off for prosperity!

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