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San Augustin Water Coalition
fighting for a sustainable New Mexico
New Mexico State Engineer's Office Hears Motion to Dismiss Water Mining Proposal
by Carol Pittman
by Carol Pittman
The hearing on the motions to dismiss the application to mine water from the Augustin Plains basin took place February 7 at the court house in Socorro. The courtroom, designed to hold 90 people, was full, and there were attendees from all over the state who are concerned with the issue of mining ground water and transporting it out of its local area.
In addition to the public, attorneys representing a number of clients were present. Bruce Frederick, who represents about 80 clients, took the lead in making the arguments against the proposal of the Augustin Plains Ranch LLC to mine 54,000 acre feet of water every year. Also opposing the application was Steven Hernandez, representing the Middle Rio Grande Conservancy District. The two attorneys complemented each other in their statements. Other attorneys at the hearing represented several Indian Pueblos, the Luna Irrigation Ditch, the Monticello Community Ditch, UNM, and the Last Chance Water Company. Also represented were the Interstate Stream Commission and the Kokopelli Ranch.
In his presentation, Frederick described the application, pointing out that it violates the law of prior appropriation. He stated that the Office of the State Engineer does not have authority to hear or consider the application on the following grounds:
• The state Constitution limits the right to use water;
• The application is not based on beneficial use; it only mentions potential beneficial use;
• The APR LLC is laying claim to a vast amount of water;
• The application is based on aquifer storage, not on beneficial use;
• The place of use is vague: a line is drawn around seven counties where water might be
used.
Frederick further pointed that how, where, when and in what quantity the water will be put to beneficial use is clearly required.
In matters of the law, Frederick stated that the application violates the due process of his clients:
• The information in the application is incomplete (see above);
• What routes the pipeline would follow is not in the application;
• What places would be affected (specifically);
• There is no specific intent to appropriate all that water;
• Which water rights will be impaired is not evident;
• The application is detrimental to public welfare;
• It is based on speculation;
• The APR LLC has no specific need for water.
Frederick went on to say that the application asks for one thing and then decides to change to another (a reference to the applicant claiming that the application is for irrigation). As Frederick said, the applicant must submit a new application for a new proposed use.
In summary, Frederick stated that there is no legal basis for establishing a priority date. The current application is legally insufficient. The applicant is simply seeking unlimited power over the water.
Steven Hernandez began his presentation by stating that he totally agreed with Frederick. He said that his focus is on the precedent this application might set. He indicated that the public is struggling to understand what this application means. He also said that people in the move-to location don’t know what’s coming. Hernandez posed two questions: Is this kind of water use sustainable? Do people in the move-to area support more development? He further pointed out that the application violates public interest/welfare by listing all possible uses without specificity.
Sherry Tippett, representing the Luna Irrigation Ditch expressed outrage that the public has been put through this process when the application should not have been filed. She requested dismissal. Richard Mertz, representing UNM, expressed concerns relating to the Very Large Array. Other attorneys stated “no position” or indicated agreement with Frederick and Hernandez. The only member of the public to speak was Monte Edwards, who indicated his concurrence with the motions to dismiss the application.
John Draper, representing the APR LLC, pointed out that the application was following the normal process:
• Application is submitted to the Office of the State Engineer;
• Once submitted, a protest period takes place;
• The applicant is asking permission to put water to beneficial use, not a perfected water
right;
• Permittee is allowed to proceed and put water to beneficial use;
• Proof of beneficial use is submitted to OSE;
• A license is issued; priority date goes back to the date of the application.
Mr. Draper claimed that the standards don’t apply to the application; the statutory requirements for applications have been satisfied. He stated that the argument to monopolize water rather than put it to beneficial use is specious. He stated that there is no requirement for size of the area where water is put to beneficial use. Draper stated that the protestants were essentially trying to thwart free enterprise. He further stated that the water in question is not owned by Frederick’s clients but by the people of the state.
Stacey Goodwin of the Water Rights Division noted that part of the application - that to do with irrigation - was sufficient to consider. She pointed out the hearing examiner could go either way on that aspect. She indicated that partial approval could pose a problem and she would prefer that the application go forward or be dismissed in its entirety.
Frederick’s response pointed out that the notice for this application is invalid. “You can’t bait and switch,” he said, meaning that the application should be void. “You check every box on the application form; keep all your options open. That is NOT legal. Your intentions must be clear from day one.” Because the applicant intends to send water through a pipe to the Rio Grande, he asked where the pipeline would go, as there was no mention of that in the application, and issues of eminent domain arise. “What is the quality of the water you want to put into the Rio Grande?” he asked.
Hernandez, in his response, pointed out that the application is switching the burden to protestants when protestants don’t know what will happen. He pointed out that the application will lock up water and prevent any other water right.
The hearing officer, Andrew Core, explained the process that will follow the hearing. He has 30 days to file a report with the State Engineer. The State Engineer can take up to 90 days following his receiving of the report to make a decision. Mr. Core stated that he hopes to have his report done "quickly."
In addition to the public, attorneys representing a number of clients were present. Bruce Frederick, who represents about 80 clients, took the lead in making the arguments against the proposal of the Augustin Plains Ranch LLC to mine 54,000 acre feet of water every year. Also opposing the application was Steven Hernandez, representing the Middle Rio Grande Conservancy District. The two attorneys complemented each other in their statements. Other attorneys at the hearing represented several Indian Pueblos, the Luna Irrigation Ditch, the Monticello Community Ditch, UNM, and the Last Chance Water Company. Also represented were the Interstate Stream Commission and the Kokopelli Ranch.
In his presentation, Frederick described the application, pointing out that it violates the law of prior appropriation. He stated that the Office of the State Engineer does not have authority to hear or consider the application on the following grounds:
• The state Constitution limits the right to use water;
• The application is not based on beneficial use; it only mentions potential beneficial use;
• The APR LLC is laying claim to a vast amount of water;
• The application is based on aquifer storage, not on beneficial use;
• The place of use is vague: a line is drawn around seven counties where water might be
used.
Frederick further pointed that how, where, when and in what quantity the water will be put to beneficial use is clearly required.
In matters of the law, Frederick stated that the application violates the due process of his clients:
• The information in the application is incomplete (see above);
• What routes the pipeline would follow is not in the application;
• What places would be affected (specifically);
• There is no specific intent to appropriate all that water;
• Which water rights will be impaired is not evident;
• The application is detrimental to public welfare;
• It is based on speculation;
• The APR LLC has no specific need for water.
Frederick went on to say that the application asks for one thing and then decides to change to another (a reference to the applicant claiming that the application is for irrigation). As Frederick said, the applicant must submit a new application for a new proposed use.
In summary, Frederick stated that there is no legal basis for establishing a priority date. The current application is legally insufficient. The applicant is simply seeking unlimited power over the water.
Steven Hernandez began his presentation by stating that he totally agreed with Frederick. He said that his focus is on the precedent this application might set. He indicated that the public is struggling to understand what this application means. He also said that people in the move-to location don’t know what’s coming. Hernandez posed two questions: Is this kind of water use sustainable? Do people in the move-to area support more development? He further pointed out that the application violates public interest/welfare by listing all possible uses without specificity.
Sherry Tippett, representing the Luna Irrigation Ditch expressed outrage that the public has been put through this process when the application should not have been filed. She requested dismissal. Richard Mertz, representing UNM, expressed concerns relating to the Very Large Array. Other attorneys stated “no position” or indicated agreement with Frederick and Hernandez. The only member of the public to speak was Monte Edwards, who indicated his concurrence with the motions to dismiss the application.
John Draper, representing the APR LLC, pointed out that the application was following the normal process:
• Application is submitted to the Office of the State Engineer;
• Once submitted, a protest period takes place;
• The applicant is asking permission to put water to beneficial use, not a perfected water
right;
• Permittee is allowed to proceed and put water to beneficial use;
• Proof of beneficial use is submitted to OSE;
• A license is issued; priority date goes back to the date of the application.
Mr. Draper claimed that the standards don’t apply to the application; the statutory requirements for applications have been satisfied. He stated that the argument to monopolize water rather than put it to beneficial use is specious. He stated that there is no requirement for size of the area where water is put to beneficial use. Draper stated that the protestants were essentially trying to thwart free enterprise. He further stated that the water in question is not owned by Frederick’s clients but by the people of the state.
Stacey Goodwin of the Water Rights Division noted that part of the application - that to do with irrigation - was sufficient to consider. She pointed out the hearing examiner could go either way on that aspect. She indicated that partial approval could pose a problem and she would prefer that the application go forward or be dismissed in its entirety.
Frederick’s response pointed out that the notice for this application is invalid. “You can’t bait and switch,” he said, meaning that the application should be void. “You check every box on the application form; keep all your options open. That is NOT legal. Your intentions must be clear from day one.” Because the applicant intends to send water through a pipe to the Rio Grande, he asked where the pipeline would go, as there was no mention of that in the application, and issues of eminent domain arise. “What is the quality of the water you want to put into the Rio Grande?” he asked.
Hernandez, in his response, pointed out that the application is switching the burden to protestants when protestants don’t know what will happen. He pointed out that the application will lock up water and prevent any other water right.
The hearing officer, Andrew Core, explained the process that will follow the hearing. He has 30 days to file a report with the State Engineer. The State Engineer can take up to 90 days following his receiving of the report to make a decision. Mr. Core stated that he hopes to have his report done "quickly."