1) A Citizen's Request is Ignored by NM State Engineer (October 10, 2001)
2) Judge Rules state engineer acted outside of his mandatory duties (December 14, 2001)
Thomas Turney, State Engineer
Office of the State Engineer
P. O. Box 25102
Santa Fe, NM 87504-5102
Re: Request to rescind OSE approval of mining use by Cerrillos Gravel Products from a well numbered RG-73232 & RG 24629-x-2.
Dear Mr. Turney:
I am writing on behalf of the Rural Conservation Alliance ("RCA") and several citizens of the Cerrillos, New Mexico area. This letter is a formal request that the Office of the State Engineer rescind approval of an application by Cerrillos Gravel Products ("CGP") for the use of water for "mining purposes" from a well numbered RG-24629-x-2 and re-numbered RG-73232 (a copy of the approved application is enclosed as Exhibit A). Alternatively, should you not rescind this approval, this is a formal request for a hearing on this matter, pursuant to the provisions of NMSA 1978 §72-2-16.
The application approved September 14, 2001 is the same application that was protested in January-February 2000 (after publication and notice) by several persons and entities, including two public water supply systems that are political subdivisions of the state. A change in the application and/or well number does not remove this contested application from either the public process or the statutory and regulatory mandates regarding impairment. Because the OSE technical division has found that use of water from the well in question for mining uses will cause impairment, the State Engineer has no jurisdiction to approve the application. See NMSA 1978 §72-12-1 (". . .if he finds that the proposed use will not permanently impair any existing rights of others, he shall grant the application." Conversely, "[i]f he shall find . . . will permanently impair such rights, then there shall be advertisement and hearing . . .") In this case, this application was advertised and protested, but no hearing occurred. Instead, the OSE has taken alternate actions beyond the public view, in spite of awareness that there are several contested questions of both fact and law.
[Thomas Turney - October 10, 2001]
Page 2 of 3
The facts supporting this request are as follows:
1. In late 1999, it was discovered that Cerrillos Gravel Products ("CGP") and Richard P. Cook, doing business as Associated Asphalt, had been illegally diverting water in connection with a gravel mine near Cerrillos, New Mexico. Exhibit B.
2. CGP had been diverting water from an exploratory well, RG-24629-x-2, drilled by Occidental Minerals in 1975. Subsequently, Brad Aitken, CGP's president, filed a 72-12-1 application to use water from this well for domestic purposes only. The well was renumbered RG-73232 and the application for use of water for domestic purposes was approved.
3. On December 29, 1999, Cerrillos Gravel Products filed an application to use RG-24629-x-2 to appropriate water "to be used for reclamation and dust control purposes." Notice of this application was published January 17, 24, and 21, 2000. Exhibit C.
4. Over forty protests to this application were filed with the office of the State Engineer, including protests by El Vadito de los Cerrillos MDWCA (the nearest public water supply entity), several people with domestic wells in the area, and the Rural Conservation Alliance ("Protestants"). Exhibit D.
5. On February 3, 2000, the RCA wrote to Mr. Paul Saavedra, specifically asking to be kept informed of any application by Cerrillos Gravel Products or Richard P. Cook for a 72-12-1 mining use well. Exhibit E. On March 2, 2000, the RCA raised this issue again with Mary Young, enclosing evidence that past illegal diversions of water from RG-24629 for dust abatement purposes alone had been over 4.79 acre-feet annually ("afa"). Exhibit F. Despite these very specific requests and the fact that the application had been protested, the Office of the State Engineer has not kept the interested parties apprised of actions taken regarding this application.
6. On March 3, 2000, Mary Young submitted a memorandum to Paul Saavedra recommending denial of the application filed December 29, 1999, based on the fact that the requested appropriation will "take in excess of 0.1 acre-foot from a fully appropriated stream system within the first year of exercise." Exhibit G.
7. The usual procedure for a protested application is that the applicant must request a hearing. Protestants have never been informed of such a request.
8. At some time, Brad Aitken and CGP filed a 72-12-1 application for a mining use. The application was originally numbered RG 24629-x-2 and was signed on February 7, 2000. Subsequently, the application number was changed by hand to RG-73232. Exhibit A. Apparently, an affidavit by Greg Upton, CGP's manager, in support of the application was signed February 3, 2000. There is no documentation whether there was an attempt to verify the statements contained in the affidavit. This is of particular concern, considering that CGP had been caught in previous misrepresentation to Santa Fe County that it had six acre feet of water rights.
[Thomas Turney - October 10, 2001]
Page 3 of 3
9. The
72-12-1 application for RG 24629-x-2/RG 73232 was received by
the Albuquerque water rights office on November 3, 2000. It is
unknown whether the application had been renumbered before or
after this time.
10. On February
14, 2001, Jack Frost submitted a technical memorandum to Nancy
Cunningham concerning "RG: 73232." Exhibit H. (It should
be noted that Jack Frost formerly worked as a hydrologist with
Santa Fe County, when it was discovered that CGP had misrepresented
to the County that it had valid water rights.) Mr. Frost finds
that diversion of 3 afa will cause impairment, while 1.39 afa
may not "if the mine manager's recollections of historic
water use are correct." Apparently Ms. Cunningham's approval
for use of water from RG-73232 for mining uses is based on Mr.
Frost's technical memorandum. Neither this later memorandum nor
Ms. Cunningham's approval make reference to Ms. Young's earlier
memorandum recommending denial of the December 29, 1999 application
for the same use of water, or to the evidence submitted by Protestants
that the use of water for dust control purpose was far greater
than that represented by Mr. Upton in his affidavit.
11. Not only were protestants not informed of actions taken by the Office of the State Engineer regarding the use of water from RG-24629-x-2/RG 73232, but the Santa Fe office Water Rights files for RG-24629 and RG 73232, which are public records, did not contain any documents (including any and all pertaining to the protested application) that would indicate that actions were being considered beyond the public purview.
The State Engineer has no jurisdiction to approve a 72-12-1 well for a mining use if he finds impairment. In this case, the technical division has twice found that there will be impairment. Therefore, the Office of the State Engineer has no jurisdiction to approve water from a 72-12-1 well for the proposed mining uses. Please rescind the September 14, 2001 approval, or set this matter for hearing pursuant to NMSA 72-2-16. If I have not had a response within two weeks, the Protestants in this matter will pursue all remedies available to them by law.
Please contact me if you have any questions.
Sincerely,
Mary E. Humphrey
[Attorney at Law]
xc: Patricia
Madrid, Attorney General
Rural
Conservation Alliance
Estevan
Lopez and Charlie Gonzales, Santa Fe County Land Use Director
(without attachments).
SENT VIA FACSIMILE TO (505) 986-6362 AND FIRST CLASS MAIL
December 14, 2001
Chris Graeser, Assistant County Attorney
Charlie Gonzales, Code Enforcement Officer
Santa Fe County Land
P. O. Box 276
Santa Fe, N.M. 87504-0276
Re: Cerrillos Gravel Products, CDRC Case # M 97-5231
Status of Water Rights
Dear Mr. Graeser and Mr. Gonzales:
This letter is to inform you of the outcome of yesterday's hearing on Rural Conservation Alliance et al. v. Thomas M.Turney. The RCA had filed a Verified Petition for a Writ of Mandamus asking the court to order the State Engineer to rescind its September 14, 2001 approval of CGP's application for a permit to appropriate water for mining uses, as well as to order the State Engineer to set a hearing on the merits of the application. The court issued an Alternative Writ of Mandamus [see text below] on November 30, 2001, directing the Engineer to show cause why a Peremptory Writ should not issue. Yesterday, the court issued a peremptory writ, finding the Engineer had no authority to condition the application, thus rendering its approval invalid.
Thus, CGP remains without valid water rights for dust abatement, and any hearing on reinstating its permit to mine is premature.
Because he found that the state engineer acted outside of his mandatory duties, Judge Hall did not reach the second issue of whether the State Engineer had to order a hearing on the application. Obviously this leaves this issue open for further litigation. I will send a copy of the Writ, along with a transcript of the judge's ruling, as soon as the Writ is finalized and entered.
Please feel free to contact me if you have any questions.
Sincerely,
Mary E. Humphrey
xc: Rural Conservation Alliance [RCA, POB 361, Cerrillos, NM 87010]
---------------------------------------------- Judge issues a pre-emtory Writ of Mandamus
RULINGS-SF01-2727CV
RULINGS OF THE COURT [Judge: Eustacio Herrera]:
This matter comes before the Court on a Alternative Writ of
Mandamus and the request here today is that I issue a pre-emtory
Writ of Mandamus or issue if there is a non-discretionary duty
imposed in this case on the State Engineer. My view is that the
statutes do impose certain non-discretionary duties on the State
Engineer. Sec. 72-12-3(b) applies a non-discretionary duty on
the State Engineer that upon the filing of an application under
this Section, the State Engineer shall make an examination of
the facts and if he finds that the proposed use will not permanently
impair any existing rights, he shall grant the application.
The Statute
states also and I believe that this is likewise a non-discretionary
duty, that if the State Engineer finds that the proposed use
will permanently impair the rights, there shall be advertisement,
annual hearings as envisioned in Sec. 72-12-3.
In making these applications for such a permit, Sec. 72-12-l(b)
states that the application shall be as set forth in Sec. 72-12-3.
Under Sec. 72-12-3(a), the application must include a number
of matters, but, in particular, it must include the amount of
water applied for; so, in my view, the way the statutes operate
is, an application must be made which includes a statement of
the amount of water applied for. At that point, the non-discretionary
duty of the State Engineer is to make a determination whether
the proposed use, including the amount of water applied for,
will permanently impair or not permanently impair the existing
rights of the others.
There is
no statutory authority in my view for the concept that the State
Engineer may have somehow reduced the amount of water applied
for in an effort to make the permit meet the requirements of
Sec. 72-12-l(b); that provision does not exist and for good reason,
because if the amount applied for is going to permanently impair
the rights, then there should be notice, advertisement and perhaps
a hearing.
I do not
believe and I do not find anywhere in the statute the authority
of the State engineer to change the application so that it meets
the criteria of Sec. 72-12-3(b) as applied to this case. In this
case, the State Engineer has not fulfilled his non-discretionary
duty to determine whether the proposed use, including the amount
of water applied for, would or would not permanently impair the
existing rights of others. At best, if there is an inference
that because it was granted at some lessor level he must have
concluded that could be permitted without permanently impairing
the rights. The statute requires more than an inference; so,
I issue a Writ of Mandamus, a pre-emtory Writ of Mandamus in
which I direct that the State Engineer shall comply with his
non-discretionary duty under Sec. 72-12-l(b), to examine the
facts and make a determination whether the proposed use of the
amount of water applied for will or will not permanently impair
any existing rights of others. I will order that the permit only
be allowed once the State Engineer has fulfilled his statutory
duty under Sec. 72-12-l(b). Because the State Engineer has not
made that pre-determination, it would be premature for me to
determine whether or not these Petitioners have a right to a
hearing under Sec. 72-2-16, because it could be that the State
Engineer will determine that the proposed use will permanently
impair existing rights and the mechanisms in Sec. 72-12-3 would
be triggered. I make no ruling on that point.
I will enter
a pre-emtory Writ of Mandamus directing the State Engineer to
fulfill that duty in this matter.
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