The State Engineer’s hearing on protests against the mine’s application to transfer 2,400 AFY of water rights to reopen Copper Flat Mine continues to be mainly a contest between the mine (plus the water rights owner), on one side and on the other, the Ladder Ranch and what is called in the hearing the Hillsboro Protestants, made up of the Hillsboro Pitchfork Ranch, PAWA, GRIP, and the Sierra Club. The Hearing Examiner, pleasant and open as her demeanor is, continued to appear to this biased observer to treat the mine’s attorneys with deference, but mid-week started to want to hear more from Hillsboro’s witnesses. I think this might be a sign that she gets caught up in the presentation and her discretionary decisions are following her interests. The star of the procedure has clearly the Ladder’s lawyer, Tessa Davidson, who behind a helpful-girl-next-door appearance complete with giggles, always immediately cites the pertinent documents out of the hundreds of texts submitted and easily riposts with to-the-point arguments.
By law the State Engineer’s final decision (and therefore the Hearing Examiner’s report) can be based only on whether the use of these water rights will impair other water rights, violate conservation of water, and/or harm public welfare. Since conservation and public wellbeing are vague, these kinds of litigations have always been decided by hydrology. A NM regulator once said to me that when you get two hydrologists in a room, they just argue. This hearing involves at least eight hydrologists.
Indeed, the week started with the testimony of Santa Teresa Land’s hydrologist Jim Riesterer. Since STL wants to retain use of the rights at issue, he argued that the transfer would violate conservation, defining conservation as beneficial use that would not increase depletions in the system. He also provided evidence that the mine’s wells could not supply the water needed for mining. His testimony resulted in lengthy back and forths about offsets and depletions, keeping this topic active.
Next up, Camino Real Regional Utility Association introduced a public welfare argument against the transfer. CRRUA wants to protect what it considers unusually valuable water rights because these rights were permitted without a requirement for offsetting its use. Normally, the harmful effects of groundwater pumping near the Rio Grande are “offset” by permanently “retiring” water rights purchased on the market, that is, by no longer exercising those rights. That means that any actual use of water costs twice as many rights. Worse, there are hardly any water rights for sale in the Lower Rio Grande Basin, so, according to CRRUA Director Brent Westmoreland, the enormous economic development of the Sunland Park/Santa Teresa Industrial Park/Santa Teresa Border Crossing complex is threatened by any movement of water rights out of the area.
The rest of the week was devoted to the witnesses of the Ladder and PAWA, sometimes presented jointly. Of these, the most telling was their hydrologist Mustafa Chudnoff. His tactic was to use the mine’s data to calculate impacts but adding both omitted considerations (such as the geology and groundwater flows west of the mine) and information published since the mine’s 2014 study to show that wells and springs on the Pitchfork Ranch, the Ladder Ranch, and along Las Animas Creek would be impaired or near impairment. Throughout, he emphasized the difference between hydrological estimations and reality.
During cross examination, Mr. Chudnoff stuck to his opinions which conflicted not only with the mine’s hydrology but with the hydrologists for the Interstate Stream Commission and with the Water Rights Division. Two days after his testimony, his dogged arguments caused the WRD to revise its hydrological report (which I’ve not read) to list a large number of Las Animas wells as critical and so possibly impaired, including two wells belonging to PAWA members. We will see next week whether this revised report will be allowed into evidence.
PAWA fact witnesses — Bob Cunningham and his sister Kathy McKinnon for the Pitchfork, myself for PAWA, Alyson Siwik and Michael Berman for GRIP, and Dan Lorimier for the Sierra Club – supplemented testimony by the Ladder’s mining expert, Jim Kuipers, and Ladder Ranch manager, Dustin Long, in an effort to make a strong enough argument in conservation and public welfare to give those issues more prominence in this and future water disputes.
Two strange events marked this week’s proceedings. One of PAWA’s witnesses was found to be reading his testimony from a script. The witness and his attorney were reprimanded, but the evidence was accepted into the case record with the admonition that its weight would be diminished. The second event was the appearance of a subtext to this litigation.
The cross examination of Mr. Westmoreland (executive director of CRRUA) by the mine’s lead attorney, Charles Dumars, revealed a surprising history among the litigants. Though on opposing sides in this hearing, the two men spent the first few minutes of the cross laughing, reminiscing, and telling into the record anecdotes of the good old days of their youth. The cross became Mr. Westmoreland’s philosophical explanation of why he was opposing his old friend and Mr. Dumars’ friendly acceptance of a slanting apology.
A little search in the history of the water rights at issue shows that many of the people in this litigation are connected to each other through their long term involvement with water rights that once belonged to the legendary land-swapper and developer Charlie Crowder (said to have swapped private land for over a million acres of public land including parts of the Gila National Forest). His life and deals, bankruptcies, and litigations are far too complicated to narrate here. Suffice it to say that with the help of presidents and governors he brought together the land (some 30,000 acres through a swap with the BLM) and the water rights (claims of over 100,000 AFY water rights managed for him by Hillsboro/Kingston resident Jimmy Basin) to make Sunland Park, Santa Teresa Border Crossing, Santa Teresa Industrial Part and a Union Pacific rail head New Mexico’s attempt to compete with Texas and El Paso for the maquiladora trade. Crowder is said to have sent his crews into Chihuahua without permits to build a highway to Santa Teresa even before the port of entry was designated by the United States.
The 2,400 AFY water rights at the center of this hearing were part of the Crowder rights, rights so complicated in history that the OSE avoids sending them all into the basin adjudication. Mr Dumars has been the legal representative or agent for Crowder rights for decades. The mine’s expert witness in this hearing, Gilbert Mesa, has been an agent of these rights for as long. Tom Turney, former NM State Engineer, who appeared as expert witness in the other PAWA supported litigation about the mine’s water rights, wrote the expert’s report for a permit application for some of these rights and was their agent. Mr. Westmoreland’s CRRUA is the present owner of the bulk of the Crowder rights after public domain actions by Dona Ana County and the City of Sunland Park and permit negotiations with the OSE reduced those rights to about 20,000 AFY. Chris Lyons, the owner of protestant Santa Teresa Land also at one time held all the Crowder rights. All the organizations from the move-from location of the rights at issue in this hearing plus the mine’s attorney have engaged in multiple litigations over the Crowder rights in one configuration or another. Old friends, old boys.
We are taking Friday off. The show starts again Monday to see what the Hearing Examiner will do with the new WRD document.
Thank you, Max, for your insightful articles on this matter, your ‘biased’ (not so much) account, and your presence at this hearing on Hillsboro’s and other’s behalf. AND all your time and expertise on the matter, which is critical to surrounding communities and our Grande river.