La Jicarita News - Community Advocacy for Northern New Mexico

In the wake of the Cerro Grande fire and the rash of catastrophic wildfires on public lands throughout the United States, Congress acknowledged the need for a massive forest restoration program. It therefore passed legislation which allocated billions of dollars to formulate and implement plans to help rehabilitate and safeguard our national forests. Within those plans, Wildlands/Urban Interface projects (projects which attempt to reduce fire hazards on forested lands adjacent to human communities) were given the highest priority. Among all the wildlands/urban interface projects being considered throughout the country, the Santa Fe Watershed was designated as the number one priority. Why? Because all of the elements that contribute to catastrophic wildfires have been identified within the Santa Fe Watershed and Forest Service computer models used to simulate fire behavior indicate that "if we do not substantially reduce the number of trees that blanket this area, we can expect a high severity fire that will decimate the Watershed, threaten the City with loss of homes and businesses, cause massive soil and debris flows in to the Santa Fe River and its water supply reservoirs, and send muddy flood waters through Santa Fe's streets and downtown area."

Thinning in the city-owned portion of the watershed

In response to this Congressional mandate, the Santa Fe National Forest (SFNF) undertook an Environmental Impact Statement (EIS) to assess on the ground conditions, formulate plans to improve forest health and reduce the risk of catastrophic fire, and monitor the result of their actions in order to evaluate their success or failure. Working in conjunction with the City of Santa Fe and the Sangre de Cristo Water Association, the EIS team began the NEPA (National Environmental Protection Act) process in June of 2000. As part of that process they solicited input from the general public both written and through a series of monthly public meetings. These meetings also allowed the public to meet with members of related regulatory agencies, environmental groups and environmental scientists who gave information and discussed strategies to address these problems.

The project area includes 7,270 acres of steeply sloped mountainside surrounding the watershed. It is accessed by one main road running seven miles from the top of Upper Canyon Road to the Pecos Wilderness boundary. There are a few serviceable spur roads, but less than 7% of the project area is readily accessible. The project proposal calls for "'thinning from below [thinning which targets the smaller diameter trees and reduces both the understory and the density of the forest canopy] followed by low intensity prescribed burning, which [the EIS states] has proven to be a very effective combination treatment for reducing the chance of severe crown fires by reducing ladder fuels [combustible material in the understory] and creating wider spaces between trees." Historical research demonstrates that before there was significant human intervention, this area which currently averages 500 to 1000 trees per acre, was park like and probably averaged 20-80 trees per acre.

In order to formulate a project plan, the EIS team considered a number of alternatives. Because this area is within an "inventoried roadless area" and because road construction on steep slopes often causes significant erosion and stream sedimentation, no road building alternatives were considered. The alternatives which were considered in detail ranged from no action to machine (feller-buncher) or manual (chain saw) thinning and slash pile or broadcast burn (spreading the slash across the forest floor) prescribed fires. SFNF Supervisor, Leonard Atencio, ultimately decided on a combination of two alternatives which employ both methods of thinning and both methods of prescribed burning in order "to create a variable density mosaic that mimics natural fire disturbance patterns" and shift forest structure from a landscape dominated by trees less than 12 inches in diameter to one dominated by trees 12 inches and larger in diameter. The vast majority of the thinning will involve trees 6 inches in diameter or smaller and the prescription prohibits cutting trees over 16 inches in diameter. The work will be extremely labor intensive and the plan calls for a time frame of between 5-10 years, treating 500-1000 acres per year. In conjunction with these restoration actions the EIS team also formulated a comprehensive plan for monitoring which will evaluate outcomes with regard to: forest vegetation, soil, water and aquatic habitat, riparian ecosystems and wetlands, terrestrial habitat and associated wildlife, air quality, social environment and heritage resources and adjust the plan as the work progresses.

A point of personal concern before I go on. The primary criticism (and it's a significant one for those of us that support local community forestry) of machine (feller-buncher) thinning which the EIS claims "can do as much thinning in a day as 8 men with chain saws " is that no contractor in New Mexico currently owns this expensive piece of equipment and therefore all contracts for such thinning would be awarded to out-of-state operators. Wouldn't it make sense for the Forest Service to use some of these new funds to purchase a feller buncher which could be loaned or leased to a local operator in order to keep this money in the local economy?

Okay. So having identified a compelling need for immediate action, having consulted with a wide variety of experts, having solicited public input, having considered a wide variety of alternatives, and having devised a plan to monitor the results and alter future plans based on that information, the Forest Service issued what the vast majority of people involved in the process (including the Santa Fe Group of the Sierra Club and the Sangre de Cristo Audubon Society) felt was an environmentally sensitive and practical decision. But to no one's surprise that decision was appealed by guess who, our old friend Sam Hitt and his trusty sidekicks, Bryan Byrd and Greg Pollak. (Didn't Sam just say he was retiring?) And what exactly is the basis for their appeal? The main point is that the Forest Service "relied upon habitat information as a proxy for [wildlife] population inventories and as a means to extrapolate population trends." In other words, at this pivotal moment when the need for immediate action has been acknowledged by an overwhelming majority of experts, Sam is arguing that in addition to ensuring enough habitat will be protected by the plan to maintain viable wildlife populations, time consuming surveys of those populations must be undertaken to be in compliance with the National Forest Management Act. He contends that these surveys are necessary in order to monitor potential changes in wildlife populations despite the fact that the treatment area is a small fraction of potential habitat in the area and none of the habitat within the affected area has been designated "critical" for endangered species. The appeal also objects to the Forest Service plan "to monitor the impact of its actions in the watershed and to make changes where appropriate using the concept of 'adaptive management' (a process of implementing land management practices in incremental steps and evaluating whether desired outcomes are being achieved at each step)." The appellants apparently don't feel that the Forest Service is actually capable of implementing an adaptive management plan on their own and feel there should be an independent review board. The appeal brings up several other issues including the prohibition concerning cutting on steep slopes (Almost all the land within the watershed is on slopes of 40% or greater. That's why it's a watershed, Sam.), the need for a biannual consultation plan with the Fish and Wildlife Service to update potential impacts to endangered Mexican Spotted Owl habitat and possible inconsistencies with the overall SFNF management plan. All of it, in my opinion, seems like "splitting hairs" while imminent danger looms on the horizon. Ironically, Sam assures us that the Forest Service, which he infers throughout the appeal is completely incompetent, is fully capable (because of the infusion of federal money) of fighting any fire in the watershed that may occur while these wildlife surveys (which could take up to two years to complete) are undertaken. Frankly, I'd hate to be in his shoes if a catastrophic fire does occur in the watershed during the appeals process or the wildlife surveys process, should that be ordered. The "moral high ground" which Sam seems to think he inhabits, won't be nearly remote enough to save him from the outraged citizenry of Santa Fe.

Furthermore, from a strictly enviro point of view, appealing this decision doesn't seem to me to be good strategy. The endangered species act and other envi-ronmental protection legislation are coming under increasing attack for being capriciously used by environmental groups to obstruct all projects on public lands. Congress and special interest groups claim the Forest Service and other public lands management agencies are plagued by "analysis paralysis." Don't Sam and his cohorts realize that their hypercritical response to a reasonably well thought out and direly necessary project such as the Santa Fe Watershed Management Plan contributes to the rising tide of sentiment that could result in the gutting of these acts?

Don't get me wrong. I'm very aware that the Forest Service doesn't have a great track record with regard to comprehensively surveying potential impacts of their actions or living up to all the terms of their project plans. However, having acknowledged that the watershed is in imminent danger of a catastrophic fire, I think it's time to set priorities straight. After all, Sam, the Forest Service won't be doing an EIS if they go into the watershed to fight a fire.

ANNOUNCEMENTS

• The 2002 New Mexico Organic Farming and Gardening Expo will be held on Friday, February 8 and Saturday, February 9 at the Glorieta Conference Center east of Santa Fe. Keynote speakers include Lynn Miller, owner and current editor/publisher of the quarterly Small Farmer's Journal, and Gary Nabhan, co-founder of Native Seeds/SEARCH and currently at Northern Arizona University Center for Sustainable Environment. Friday's agenda includes workshops on How to Start and Plan a Farm Business, Organic Sustainable Greenhouse Design and Production, Organic Commercial Cut Flower Growing and Marketing, Introduction to Food and Agriculture Policy, and Using Federal Programs to Support Sustainable Agriculture. Saturday workshops will include: Appropriate Scale Farm Equipment for Farm and Garden; Cooperative Marketing; Soil Building Workshop for New Mexico Farms; Traditional Farming in New Mexico; Organic Fruit Production for New Mexico; Organic Livestock Production; and Water Right and the Big Picture in New Mexico. For registration after January 5 fees are: Friday and Saturday, $70 for New Mexico Organic Commodity Commission (NMOCC) members and $75 for the general pubic (includes Friday dinner); Saturday only, $45 for NMOCC members and $50 for the general public; Friday only, $35 for NMOCC members and $40 for the general public (includes Friday dinner). For more information call The Farm Connection at 505 579-4386 or NMOCC at 505 266-9849.

• Peace Action New Mexico has several events scheduled for January. On Saturday, January 26, there will be a seminar on Civil Liberties: A Challenge for Our Time, at the First Presbyterian Church on Grant Street in Santa Fe, from 10 am to 5 pm. On Tuesday, January 29, Peace Awareness Night, Bill and Kathleen Christison, retired CIA analysts, will speak on US Foreign Policy and Terrorism. This will be held at the Ramada Inn in Taos at 6:30 pm. For more information call 751-3634. If you want to speak out about how the USA "Patriot" Act may affect our civil liberties, write or call your congress person.

Jeff Bingaman: 505 988-6647 senator_bingaman@bingaman.senate.gov

Pete Domenici: 505 988-6511 senator_domenici@domenici.senate.gov

Tom Udal: 505 984-8950 tom.udall@mail.house.gov

Heather Wilson: 505 766-2538 heather.wilson@mail.house.gov

Joe Skeen 505 527-1771 joe.skeen@mail.house.gov

Acequia Parciantes and the Forest Service Negotiate Over Pre-Existing Rights on Federal Land

By Kay Matthews

In the July 2001 issue of La Jicarita News we discussed the issue of whether acequia parciantes have the right to maintain and repair their acequias and diversions on public land without obtaining special use permits. The Nacimiento Community Ditch Association (NCDA), near Cuba, had requested Forest Service permission to improve the existing log and sandbag structure on Clear Creek, within the San Pedro Parks Wilderness Area, with a rock and mortar and/or log headgate diversion. Santa Fe National Forest informed the NCDA that it needed a special use permit for its entire acequia acequia system, not just the proposed work on the diversion.

There ensued an argument between the ditch association and the Forest Service, going to the regional level, as to whether rights-of-way for water conveyance come under the 1866 Congressional Act that grants easement without the necessity of a permit or other authorization, and that wilderness restrictions are subject to existing rights. The Forest Service argued that various mandates, including the 1976 Federal Lands Policy Act (FLPMA), give the agency the right to "reasonably regulate" these water rights by requiring special use permits for their maintenance and improvement.

Represented by Community and Indian Legal Services lawyers David Benavides and Margaret Carde, NCDA has continued to assert its access rights, and finally, at the end of 2001, the Forest Service recognized the association's right to operate and make minor improvements on its acequia without a special use permit. In a letter dated September 26, Regional Forester Eleanor Towns wrote Benavides that "no special-use authorization is required for the presence or use of the [NCDA] ditch," and that "no special-use authorization is required to conduct normal maintenance or minor improvements to maintain the capacity of the ditch." She also stated that because a "portion of the ditch system is within the San Pedro Parks Wilderness, the use of mechanized equipment, motorized equipment, and non-native materials must be evaluated carefully." She directed the staff of the Santa Fe National Forest to work with the NCDA to implement these decisions.

In a subsequent December letter, Cuba District Ranger Roberto Rodriguez informed Benavides and Carde that under the directive from Towns he had decided that no special use permit for maintenance and minor improvements of the ditch are necessary, but that a special use permit would be required for the construction of a new diversion dam. Once the dam is completed, however, its continued operation will not require a permit. He expressed his willingness to consider the use of non-native materials for construction and maintenance projects in the wilderness and to consider the use of motorized/mechanized equipment for the construction of the diversion structure "because motorized use was approved before Wilderness designation in virtually the same location for construction of the San Gregorio reservoir." However, this would require a NEPA (National Environmental Policy Act) review (a NEPA analysis had already been started the previous year). He denied approval of the use of motorized/mechanical access or tools for routine maintenance within the wilderness, stating that "Forest Service policy specifically forbids such use in Wilderness except in cases where the use was practiced before the Wilderness designation."

According to Benavides, NCDA members claim that previous to the wilderness designation they used pick-up trucks and chainsaws to maintain the acequia and will demonstrate this to the Forest Service in order to secure the use of these tools to maintain the ditch. He admitted this doesn't address the overriding issue of whether parciantes have the right to use more modern equipment to maintain acequias within wilderness areas, but that his clients must decide how far they want to proceed with their case.

While Benavides stated "the decision for the NCDA should end Forest Service badgering of parciantes to get special use permits and allow them to do what they've always done," there are several other cases related to the issue that remain unresolved. In the July La Jicarita we also discussed the case of Virgil Trujillo, a parciante from Abiquiu who asserted his right to maintain his headgate on the Lopez Ditch in the old community of Vallecitos. Trujillo, who was cited by the Española Ranger District for taking equipment into the forest without a special use permit, ended up paying a fine for the work he had done to maintain his acequia because of a lack of time and money to litigate his case. La Jicarita recently contacted Trujillo to find out his reaction to the NCDA decision and if he felt he had recourse in his case. He said, "It can't be over until there's some kind of reasonable solution." Meanwhile, no work has taken place on his ditch (the Forest Service is supposed to consult with Trujillo on its rehabilitation) and Trujillo is collecting information and consulting with the Rio Chama Acequia Association about any further options he may have.

La Jicarita spoke with both Wayne Thornton, Director of Lands and Minerals at the Regional Office, and Mike Fraser, Recreation Lands Staff Officer at the Santa Fe National Forest, about cases like Trujillo's that were dealt with before Town's letter essentially changed the Forest Service position regarding the 1866 Act. They both agreed that the Forest Service needs to make sure that this information has been sent out to all the ranger districts: a copy of Town's letter had already been sent to John Miera, Española District Ranger. According to Thornton, the letter from Eleanor Towns provides the framework for district officers to have a wide latitude in verifying the validity of a ditch&emdash;historical records, oral histories, state records, etc.&emdash;and according the parciantes the right of way for routine maintenance and minor improvements without a special use permit unless there is specific case law to the contrary.

The Need for Public Participation in Regulatory Processes and The Sound Science Principle

By Doug Meiklejohn, Executive Director, New Mexico Environmental Law Center

Reprinted from the New Mexico Environmental Law Center newsletter the Green Fire Report, with author's permission

As has been pointed out before in this column [From the Director's Desk], decisions abut environmental issues that affect communities are frequently made by agencies of state and federal government. Most often, these agencies act on the basis of information that is presented to them by entities such as local governments and private corporations that are seeking licenses or permits for their proposed activities or are seeking approval for reclamation and other plans. These activities can include items that are relatively benign, such as playgrounds and parks, and items that have serious environmental impacts, such as mines, landfills, and incinerators.

The prevailing wisdom among most federal and state agencies is that so long as their decisions are based on "sound science," those decisions are valid, and communities that are affected by them should not object to them. There are at least four reasons why this is not accurate.

Communities should be able to participate in decisions that affect them.

The first and most compelling reason is that communities should be able to affect what happens to them. The residents of communities where polluting facilities are located, or where facilities are proposed to be located, are the people who are affected by those facilities. Therefore, those residents should have a voice in determining what happens with such existing or proposed facilities.

The real problem is that our political system allows those with political power to defend their back yards but does not afford the same opportunity to people without political power. Because of this inequity, polluting facilities are most likely to be located in minority and low income communities, and pollution is less likely to be cleaned up in such communities.

Sound science depends upon who is paying the bill.

The second problem with the sound science approach is that well-qualified and reasonable scientists can, and do, reach different conclusions about the same proposals. The proceedings in which decisions are made about clean up of such contamination and proposed facilities are usually decided on the basis of questions such as the nature of the contamination, the emissions from a proposed incinerator, whether a proposed landfill's liner will leak, or how badly water in a mine pit will contaminate groundwater.

It is no secret that the scientific experts employed by a company seeking a permit for a proposed facility will present evidence indicating that the facility will comply with applicable laws and regulations, just as the experts for groups opposing the facility will present evidence indicating that the same facility will violate those laws and regulations. This is not to say that scientific experts are dishonest or that they will say just what their clients want to hear. It is to say, however, that scientific experts disagree, and that they are advocates just as the lawyers involved in these proceedings.

Government agencies are subject to industry influence.

The third problem with an approach based only on scientific issues is that federal and state government agencies are frequently heavily influenced by the industries that they regulate. The staff of the Nuclear Regulatory Commission is a good example: its approach in the matter involving Hydro Resources, Inc.'s proposal to mine uranium in Crownpoint and Church Rock has been to advocate for that mining throughout the proceeding. As another example, the Air Quality Bureau of the New Mexico Environment Department has supported the Intel Corporation's efforts to obtain the permit that it wants for emissions from its computer chip plant in Rio Rancho.

These examples are typical. A community that is opposing a plan for a proposed facility or advocating for the clean up of contamination will usually find that it is up against both the company that operates or is proposing the facility and the staff of the federal or state agency that has regulatory control over the facility. Often those agencies will refer to the industries that they regulate as their customers, raising the obvious question of how they regard communities and the environment.

Government agencies' science can be influenced by politics.

The final problem with the sound science approach is that government agencies' science is frequently determined by politics. Agency staff members answer to the heads of those agencies; those agency heads are usually appointed by elected officials and are therefore subject to the influence of the people who helped the officials get elected. In many cases, there are situations in which an agency's staff arrived at a position based upon scientific factors only to be informed that the position would have to be changed because of political considerations.

One on-going example involves the Solid Waste Act of 1990. Currently, the City of Roswell is seeking to expand its landfill. However, because the landfill would violate the State's limit on how far a landfill must be located from groundwater (100 feet), the City has requested that the State change the limit to 80 feet, since Roswell's landfill is proposed to sit 85 feet above groundwater.

Conclusion

Sound science has an important role in decisions about how to deal with pollution that exists and whether to permit proposed facilities that may pollute. Such science is not the only consideration that should be taken into account, however, especially given the fact that science is not always as exact as it may seem. Decisions also should be based on the impacts of existing or proposed facilities on the lives of residents of communities, on what the residents want done with existing facilities, and on whether the residents want the proposed facilities. The ability to influence those decisions should be available to all communities, not only those that can make it happen through the political process.

Editor's Note: The New Mexico Environmental Law Center is a non-profit, public interest law firm that provides free and low cost legal services on environmental matters throughout New Mexico. It has often represented rural communities in their battles for environmental justice. It currently represent Picuris Pueblo in its struggle to end mining on its ancestral lands as well as a community coalition in Silver City that is fighting to protect ground and surface water in its area from mine pollution. The work of the Law Center is made possible by tax-deductible contributions from individuals and businesses, foundation grants, and limited earned income. If you would like to contribute to the Law Center or want further information about its work, contact numbers are: 505 989-9022; e-mail: nmelc@nmelc.org.

Puntos de Vista: Our Tarnished Treasure, or Poor Old Threadbare New Mexican Agriculture

By Lynn Montgomery

Placitas has always been a spunky, rebellious, and contrary place. During prohibition, most of the Federal Revenue Agents assigned to the state resided in Placitas, where much moonshine was produced despite their presence. We are an old and still standing land grant, San Antonio de las Huertas, and we have three community acequias and many smaller traditional private water rights that support a languishing agriculture. Some of us are too dumb or stubborn to try anything else and keep on growing crops and raising livestock.

The last two decades have seen an overwhelming amount of residential development in Placitas, with the accompanying noise, traffic, and loss of culture experienced by so many small communities in Northern New Mexico. One of the ways we live up to our reputation is to file protests against water rights transfers in our area. We have little groundwater to support our creek and spring flows, so we are very vulnerable to groundwater pumping. We presently are appealing a decision by the State Engineer to grant a pumping permit to a developer and have four more protests outstanding. One of these is for a gravel pit, another for a local shopping center, and another for a gypsum wallboard company. All of these are transfers from farmland in the Rio Grande Valley, mostly from Valencia County. Placitas is unincorporated, as it is impossible to get all the diverse neighborhoods to come together and trust each other. Being unincorporated is tough, but at least we don't have a local government for the exploiters to buy. Instead, they have to go down and join the Sandoval County Government and Friends Exploiters' Club and pay stiff dues.

For thousands of years, herdsmen and farmers have been exploited. The methods of doing so fill many history books and most agricultural people are well aware of why this happened: because we have what all those seeking power and riches want&emdash;land and water. We are very threatening to them. After all, we farmers are not doing our patriotic duty and handing over our water rights to propel the expansion of their consumer economy. What traitors! And ranchers keep complaining about only having a calf market and one buyer of those calves. What ingrates! Down here in the Middle Rio Grande, the most popular way to get rid of us is to wave some cash in front of the nose of the most greedy parciante, then "buy" his water rights to Valley farmland and transfer those rights to Placitas, where they are used to pump water for lucrative yuppie trophy houses on top of all our beautiful hills. The pumping results in reduced flows of our upland creek and springs and puts already tenuous farming in the area in a critical state. Of course, the original Valley farmland has house trailers all over it and is supplied with illegal, non-permitted, coyote wells that continue to mine the aquifer.

It is critical that we save New Mexican agriculture. First, homeland security and defense go beyond buying the latest SUV at zero per cent interest. We must retain our ability to grow our own food, fiber, meat, and dairy. A people that loses that ability is very vulnerable during a long-term crisis, something that visits New Mexico with assured regularity. So be patriotic and help save our farm and range lands. Be patriotic and start growing more food products for the local market, even if it doesn't pay well. Be patriotic and help our agricultural markets so it does pay well.

Second, New Mexico has already squandered much of its water resources by selling them to developers who have made huge profits. When the next drought comes, things are going to get very serious. We are going to have to tap into the knowledge and wisdom of the past to survive. So be patriotic and help preserve and restore our acequia and Land Grant culture. It is our real treasure.

Farmers and herdsmen have always played defense. It is time to start playing a little offense and even conduct an ambush or two. Let's all take pride. Una pala knows not the heritage of its operator. All of our acequias, Grants, and ranches need more pala action, so be patriotic and get out there with your shovels and bend your backs and file your protests, and above all, no la venda!

Lynn Montgomery wears a lot of sombreros and cabezones. He is co-chair of the Agricultural, Historic, and Cultural Constituency Group of the Middle Rio Grande Water Assembly, President of Friends of Placitas, and Mayordomo of Acequia La Rosa de Castilla. He grows fruits, vegetables, and herbs and preserves old fruit varieties in nursery on his farm on Las Huertas Creek. He is Steward of the Spanish Colonial Village site of San Jose de las Huertas, the last such site extant in the US.

Folks at the Taos Valley Acequia Festival Reading La Jicarita

Water lawyers Mary Humphrey and Connie Odé

José Rivera, author of “Acequia Culture: Water, Land, and Community in the Southwest”