Water Hearing III: The First Week

Water Hearing III: The First Week

The State Engineer’s Hearing of the protests against the mine’s application to move leased water rights to their wells for use at Copper Flat Mine has now finished its first week. It has yielded some surprises as well as some really excellent research.

As all of us know from watching movies and tv, the drama of a trial is the play between the judge (Hearing Examiner in our case, the HE), the competing lawyers, and the witnesses. The judge is trying to find the facts. The lawyer needs to present witnesses to establish the facts she wants the judge to accept, aided by the direct examination of her witnesses but hindered by the other lawyers’ cross examinations that question the witnesses’ accuracy, knowledge, or reliability. After a cross examination, the original lawyer has a chance to rehabilitate her witness by a redirect examination, but a seriously destructive cross seems to leave a bad impression even if the witness’s testimony is made whole again factually. European culture seems to have adopted this highly ritualized and rational form of confrontation as its procedure for justice, and the water hearing is so far a nice demonstration of that principle of restrained conflict where each participant in the process reveals its strengths and weaknesses through its ability to handle the assigned role.

The hearing began with a somewhat bizarre (note again that I am not a neutral reporter here) confusion on the part of the HE. She had asked each party to present initially a short, five-minute summary of its position, to give her a sense of the lay of the land. However, after the initial summary by the applicants, the mine, she asked the mine to present its case. When questioned by a party when it could give its summary, she said it could be done just prior to its own presentation, where, it seems to me, it would serve no purpose, and indeed, no other party gave a beginning summary.

The mine presented four witnesses: Jeff Smith, the mine’s Chief Operating Officer, Mike Jones, their hydrologist, Paul Saavedra, the former head of the water rights division of the Office of the State Engineer, and Gilbert Mesa, an engineer long involved with the water rights portfolio the mine has leased. The mine’s position is that everything is fine and if anything goes wrong, it will take care of it. Their witnesses, who are all said to be eminent in their field, gave testimony to support that position.

However, important disputes arose during cross examinations of these witnesses which will affect the final arguments of all the parties. First of these is the quality of the various hydrological studies on the impact of mining, especially on the Rio Grande as to their assumptions and their data. Will the pumping at the mine’s wells increase or decrease the impact on the river compared to the present impact caused by using the water at its present location just north of El Paso? Whether such a comparison is significant is also disputed. If the present use of water near El Paso does not stop because the present user finds other water rights, then the comparison is senseless.

Related and perhaps prior to this question is how much water the mine is going to pump. Its application for 2,400 afy is only valid until 2029, yet the mine claims it will operate with 6,100 afy of fresh water even though it has no immediate source for that much water and even though it admits it probably may not have gotten all its permits or even have constructed the mine within that time frame. In spite of the mine’s assertions, there seems no evidence of what it will actually do.

A second important issue arose from Mr. Saavedra’s assertion that irrigating sod by the present user is not agricultural irrigation because it is not seasonal. In New Mexico, only a portion of the water used in irrigation is considered actually used (called CIR or consumptive irrigation requirement, what the plants take up, the rest being returned to the aquifer). If the sod farm’s use is agricultural irrigation, only the CIR portion (a bit more than half) of the 2,400 afy leased is transferable. Mr. Saavedra claimed that the use is not agricultural but commercial because the sod is sold.

Cross examination of Mr. Mesa brought up a related issue. Mr. Mesa claimed that part of the original use of this water was for construction (that part of the 2,400 afy would be fully transferable), but his documentary evidence for this claim was questioned. Hillsboro asked that the evidence be barred, because it was produced on the eve of the testimony after years of the mine claiming it was not available or that it did not exist. The mine convinced the HE that it had done its best looking for it and that it just happened to be found at this time. The document was admitted into evidence, but whether it demonstrates what is claimed is still disputed.

Following Mr. Mesa’s testimony, the mine concluded its case, and Elephant Butte Irrigation District presented three witnesses: Gary Esslinger, its director of operations, Dr. Phil King, its surface water hydrologist, and Dr. Erek Fuchs, its groundwater hydrologist. They explained and demonstrated in great detail how the mine’s activities will reduce EBID’s delivery of water to its members not just by direct reduction of flows into Caballo Reservoir but due to the effects of that reduction in the complicated calculation of allocations of Rio Grande water among New Mexico, Texas, and Mexico according to the recent agreements in the Texas v. NM and Colo case and according to EBID’s separate agreement with Texas irrigators. The mine’s counsel casually remarked at the end of Dr. King’s explanation of those allocations that he felt he had just been through a calculus class he didn’t understand at all. If this remark entered the official record of the hearing, it can undermine the testimony by introducing a prejudicial attitude towards complex math.

During this first week, the major arguments against the mine has been EBID’s witnesses’ testimonies and the Ladder Ranch’s repeated undermining of the mine’s witnesses. Counsel for the Ladder at one point showed the mine’s hydrologist an error in calculation he had made that changed the amount of drawdown effects along Las Animas Creek by 100%, and at another point counsel quoted to him his own statement during deposition that his estimate of evaporation off the pitlake was just a “wag,” though at the hearing he insisted that his estimate was a fact based on accurate calculations. When asked if “wag” stood for “wild ass guess,” he replied, “Something like that.”

The parties who have water right interests near El Paso (that is, the present users of the water rights and related entities who do not want to lose their present use) have been relatively quiet so far. They seem to be in complex and ongoing relationships with the owner of these rights (Santa Teresa Capital) who is, with the mine, the applicant in this hearing. Their positions must be delicate.

Somewhat of a disappointment so far is the performance of the Interstate Stream Commission, the State’s watchdog for the Rio Grande. We will have to wait a few weeks to see what their arguments are.

So far, the hearing has been going faster than expected. The mine withdrew one witness, and EBID reduced its presentation drastically. Next week will see the cases of Santa Teresa Land, who will lose the use of this water, Camino Real Regional Utility Association, who administers water rights in the Santa Teresa/Sunland Park area with Santa Teresa Capital (one of the applicants), the Ladder, and Hillsboro (Pitchfork Ranch, PAWA, GRIP, and the Sierra Club), in that order.