Town of Taos Stonewalls Spring Ditch

When law can do no right,

Let it be lawful that law bar no wrong:

Law cannot give my child his kingdom here,

For he that holds his kingdom holds the law.

(King John, 3.1.189), Constance to Cardinal Pandulph, Shakespeare

Justice Delayed is Justice Denied

Judge John Paternoster ruled on Tuesday, Nov. 5, 2013 that the Town of Taos, defendant, has 45 days to provide the Spring Ditch parciantes, plaintiff, with “discovery.” Claimants say in a lawsuit filed against the Town of Taos that the town has “impaired,” and “blocked” or otherwise engaged in an “unlawful taking” of water rights while “trespassing” on the Spring Ditch acequia.

Apparently, the parciantes have had no response from the Town since a Dec. 6, 2010 decision by federal court that remanded the case back to district court. As Spring Ditch attorney Daniel Sanchez, a former district judge, said, “this is not an adjudication case but a case about the effects of impairment.”

Several years ago, the town allowed developer Cody West to build Central Station, a mixed use residential and commercial development over the historic source of  the Spring Ditch (See Nov. 15, 2007, Horse Fly story below.)

After Judge Paternoster criticized both attorneys for “impertinent” remarks in their pleadings and advised them to “conduct yourselves under the professional code of conduct,” while suggesting they not engage in “tit for tat,” he then forgave them, like the good father, because he said he knew them and suggested they didn’t really mean what they had said while using unfortunate metaphors, comments, remarks, etc.

Town Attorney Brian James engaged in a remarkable litany of excuses for not replying to the plaintiff’s motion. The layman could only interpret James’s remarks as disingenuous or an admission of professional ignorance and incompetence.  James said, to wit, repeatedly:

“I really don’t understand what their complaint is about” and “I don’t understand it” and “They have it” (material in question) and “I don’t know.” And “Some (interrogatories) ask for building permits” and “I don’t know what to look for” and “I’m guessing what Cody West had to do with this.” Although James might not have seen the Central Station as a work in progress, surely he’s seen the buildings behind La Bell  Cleaners.

James further tried to create a smokescreen by referring to “Abeyta,” and “jurisdictional issues” and the “Office of the state engineer” and the “federal courts.” He basically said he didn’t know where the files were or if there were files, they filled a warehouse and he had no assistant to help him find the material. He said he couldn’t fathom how to do the research vis-à-vis dates, whether he should start in the 1930s or 1970s. He didn’t say, “The dog ate my homework.”

James also tried to use “fear tactics” and implied that the Spring Ditch parciantes were threatening the 160 or 170 million dollar Abeyta—Taos Pueblo Water Settlement. He repeatedly questioned whether the lawsuit belonged in federal court, although, as this reporter understands it, the federal court had remanded the Spring Ditch case to district court.

The “Settlement,” in 6.2.5 FUTURE WATER SUPPLY WELL FIELD, says, “This Agreement does not impose any diversion or consumptive use limitations on these four new wells…” In 6.5.3.6 TOWN’S FUTURE WATER SUPPLY WELL FIELD, the Agreement says, “No Water Rights Owning Party shall protest any Town application to replace, supplement, or deepen any of its four new future water supply wells…” unless the effects deplete the increase of water for the Buffalo Pasture…” and in 8.2.3, OTHER TRIBUTARIES it says”the Pueblo shall forbear from making priority calls against non-Indian surface water rights so long as those rights are used for Lawful Irrigation or Stock Uses.”

Of course, this writer is no expert at interpreting the Settlement (unlike Mr. James). But it seems as if the Town has some flexibility in terms of shifting its consumptive use to new wells and thereby allowing Well No. 5, which affects the Spring Ditch to be used less for consumption in order to restore depleted ground water levels so that the Spring Ditch might once again recapture historic flows.

Hydrology Reports and Obstruction of Justice

Basically, Spring Ditch parciantes want access to a hydrological report done on behalf of the Town and Abeyta negotiations with regard to Well No. 5 (just north east of McDonald’s) by D.B. Stephens. Spring Ditch parciantes requested the report from the town under the Public Records act but were rejected by the town clerk a few years ago, who said it was subject to attorney-client privilege.

James continued to claim that since the Spring Ditch parciantes were part of the Abeyta-Taos Pueblo settlement that they had all the material they needed. How he came by this knowledge he did not say. The attorney who originally filed the lawsuit on behalf of the Spring Ditch was none other than Fred Waltz (RIP) who carefully constructed lawful claims so as to not interfere with the “Settlement.” As my readers but not Brian James, apparently will remember, Attorney Waltz was one of the primary attorneys for Taos Valley Acequia Association, who negotiated the “Settlement.” James frequently engages in exercises of ignorance by claiming he was not here or “this happened before my time,” etc.Whatever happened to “ignorance of the law is no excuse”?

The Mystery of “Google”

As for James’s and the Town’s refusal to provide discovery, so far, we are reminded of all the news stories surrounding the Spring Ditch controversy and the Mayor’s participation in meetings with parciantes, who, according to a ditch commissioner, advised them to “file a friendly lawsuit.” Google Spring Ditch and/or Cody West and numerous stories from the local media—Horse Fly, The Taos News, and Taos Friction—pop up on the web. Dates, names, places are a good place to begin your research. James could ask his boss, the Mayor, where to begin at Town Hall.

At one point James said he didn’t know if Cody West built in the Town or the County.

The story posted below from Horse Fly, November 2007, recaps the impairment problems of the Spring Ditch parciantes, which includes not only blockage by the Cody West project, see photos of construction, but also refers to blocked laterals due to town construction on Santistevan, Peralta, and Jeantete lanes.

Unbeknownst to Brian James, apparently the man who knows almost nothing, the local District Attorney filed suit against Cody West for “impairment” of the Spring Ditch. West settled the case with parciantes for $25,000. They have since used the money to hire legal services to pursue the town for a variety of acts that still impair the ditch.

Senator Carlos Cisneros managed to introduce and pass a memorial in favor of the Spring Ditch. (See below). Friction also posts state statutes for the benefit of readers and Brian James and his Bosses at Town Hall. Acequia rights are protected by state statute and the New Mexico Constitution.

The Cordova administration, like the Peralta administration, has engaged in anti-acequia and pro-development schemes: growing houses, not grass. Just as the town approved the Central Station project, so the Town approved the Valverde Commons—Autumn Acres subdivision, another development that trashes the vega and violates, allegedly, the rights of parciantes.

Stubborn Parciantes, Taos Style

The stubborn parciantes on the Spring Ditch are the last of a breed, if not the last acequia representatives to stand up to a municipality in their own back yard. They have been shunned by their own association, Taos Valley Acequia Association, and their own Town Council and Mayor. Yet Mayordomo Dave Rael and Commissioner Jerome Lucero, Spring Ditch parciantes, keep on coming. The law is on their side, regardless of what the courts decide.

As Shakespeare said, “he that holds his kingdom holds the law.” Course Shakespeare also had one of his characters say: “The first thing we do, let’s kill all the lawyers.”

Anyway you look at it, the Town allowed Cody West to build on top of what had been a free-flowing spring after years of degrading it with construction waste. Once, local Taosenos fished and swam in the pond where the Spring Ditch began.

Horse Fly November, 15, 2007
Water Rats II
The Spring Ditch

By Bill Whaley

The story of the Spring Ditch serves as an example of what’s happened to acequias in the Town of Taos during the last forty or fifty years as development pushes tradition and agriculture aside. The provenance for the Spring Ditch goes back to 1800, according to mayordomo Dave Rael. 
Location
Hydrological reports say the Spring Ditch once began somewhere near the Town’s municipal Well No. 5, located northeast of McDonald’s at the southeast end of the Couse Pasture. Due to highway infrastructure and building, the Spring Ditch today begins north and west of La Bell Cleaners, just off Highway 68. It is in this area, next to the ditch, that the Central Station, a residential-commercial complex of about 25,000 square feet, costing about $3.6 million, is being built under the auspices of Cody West.

From La Bell Cleaners, the ditch runs west along Ojitos Road, below the Harwood, next to the Siler property, and passes under Salazar St. About 25 yards west of Salazar, the Town has installed a concrete block and dirt bank, transforming the ditch into drainage channel and diverting its water south. Upon closer inspection, there’s a culvert and headgate that funnels some water in a westerly direction. But, according to Mayordomo Dave Rael, the west end of the culvert is blocked by dirt. “It needs a backhoe,” he said.

Nevertheless, the ditch continues west—though apparently dry—to Santistevan and Peralta Streets and Jeantete Lane and joins with other ditches in the area. While the Santistevan and Peralta Streets have culverts for the Spring Ditch, Rael points out that laterals or small irrigation ditches that go off the main ditch have been blocked by Town paving. Rael claimed, in a July 1996 letter to the Town of Taos Public Works, that the Town “erased” a key diversion from the Spring Ditch. Nor, Rael says, has the Town restored the natural flow of the Spring Ditch laterals so parciantes can use those waters.
Much of the Peralta, Santistevan, and Jeantete Lane area is a verdant tree-lined neighborhood with modest homes and open, if dry, agricultural land. The high water table, seepage, other ditches, domestic wells, and rain supplements—but is no substitute for—full flow in the Spring Ditch.

Underground Springs

Shallow underground springs serve as sources for the Spring Ditch, according to a 1969 hydrology report by the New Mexico Office of the State Engineer (OSE). The 1969 report was confirmed by two other hydrology reports, one completed for developer Cody West in June 2007, and a second paid for and completed for the Spring Ditch parciantes in October 2007.

The 1969 report shows a spring and pond as the source of the Spring Ditch on the property behind La Bell Cleaners where the Central Station is being built today by Cody West. Dave Rael told Horse Fly that the Town and private parties had been using the property as a landfill for the last few decades. During excavations, West said he found concrete debris and an old La Tuatah sign from the motel that used to run east alongside Camino de La Placita above the property.

West explained to this reporter how he installed a French Drain to maintain the flow of the original spring on the site. It’s a perforated pipe, protected by a permeable fabric, set in loose rocks and dirt.

While standing with West, this reporter could see a trickle of water flowing into the ditch from the underground source. One can also see underground seepage surfacing in the ditch as the ditch continues west from the development, due to the high water table.

Two other shallow springs furnish water for the ditch. One, via a storm drain, surfaces in the area northeast of McDonalds, near the Town of Taos’s 330-foot Well No. 5. A second shallow spring, south of Well No. 5, also feeds the Spring Ditch via the Las Crucitas Arroyo, which runs behind McDonald’s, then turns south and west under Highway 68, west next to Smith’s, and turns north toward the Spring Ditch.

Well No. 5 pumps about 325 acre-feet of water per year for municipal use out of a deep aquifer—a kind of underground river, where water runs through permeable soil and rock below the original or shallow springs in this area. According to the hydrological reports, three other town wells pump water for municipal use within 2000 feet of Well No. 5.

Ditch as Storm Drain

Development turned the ditch into a receptacle for storm drainage, according to hydro reports—although the springs still furnish fresh water to the ditch. West filed for a permit from the Army Corps of Engineers to divert Las Crucitas Arroyo, which entered his property from the south. According to a member of the New Mexico Acequia Commission, storm water is not supposed to be discharged into acequias, such as the Spring Ditch, that are being used to irrigate land for growing food and livestock. 

On the West property, two large culverts were installed by the developer to accommodate storm drains that terminate in the Spring Ditch.

Drainage grates for runoff from the state highway, Town streets, and the Town well can be seen along the pavement of Highway 68 in that area. An underground drain carries run-off from the chlorination-filtration process when the town flushes Well No. 5, northeast of McDonald’s, and run-off from the McDonald’s parking area to the Spring Ditch. Las Crucitas Arroyo carries storm runoff and spring water to the Spring Ditch. Just after fiesta, Cody West said a rainstorm washed corncobs and a wave of fiesta aroma into the ditch. Puddles of water were in evidence at the end of the culverts when this reporter inspected the property.

Rael’s Battle with Bureaucrats

During the last three years, Dave says he has noticed unpleasant aromas coming out of a storm drain in front of his cycle business, across from McDonald’s. The Department of Transportation (DOT) analyzed the water. The results showed that bacteria, E coli, and the residual effects of oil and gas from cars and old gas stations had infiltrated the storm drain, which runs into the Spring Ditch.

In an April 12, 2007 letter to Town Manager Tomas Benavidez, DOT called on the Town “to eliminate the discharge of the non-storm water” into the DOT drains. Last summer, McDonald’s was using porta potties for its customers, while local plumbers were apparently fixing the bathrooms. 

Dave said he also spoke with Town officials during winter and spring of 2007 about how the Cody West project might impact the Ditch, since there was a lack of hydrology studies then. Notes in West’s file confirm that the Town Manager ordered the Planning Department to give the permit to West.

Rael says the Town allowed West to proceed in late spring despite what he considered a flawed Jan. 2007 Army Corps of Engineers permit. The permit from the Army Corps ignored the existence of the springs.

The Army Corps of Engineers did respond to Rael’s concerns in June of 2007, stating that they were unaware of the 1969 hydrological report that depicted the springs on the property. The federal agency notified the New Mexico Environmental Department (NMED), which is responsible for the Clean Water Act, but did not notify the New Mexico Office of the State Engineer, which is responsible for ground and surface water issues affecting irrigation ditches. Fred Waltz of the Taos Valley Acequia Association wrote a letter on behalf of the Spring Ditch parciantes, dated July 5, 2007, to the Army Corps of Engineers criticizing its permit due to its “incomplete, erroneous, and misleading information.”

West ordered a hydrological report, which he received in late June 2007, saying that the Town had probably depleted some of the springs by its pumping activity. The report said the Central Station project would have little effect on the underground springs or the Ditch itself. 

Rael and the Spring Ditch parciantes held fundraisers to pay for their own hydrological study.

The study by John W. Shomaker, dated Oct. 17, 2007, says “that the principal man-made influence on the flows of the springs that supply Spring Ditch is nearby ground-water pumping, largely due from Town of Taos Well 5.” Shomaker’s study also says, “There are two ways of augmenting the supply available from spring flow and surface runoff [that] present themselves; one would be to deal with the Town of Taos to supply water directly from Well 5 through existing discharge line to meet specific shortfalls in irrigation supply, and the other would be to drill and operate a supplemental well in a location above the uppermost farm head-gate to serve the same purpose.” Shomaker also says the Central Station project would have only a “minor” effect on the springs and ditch.

Both hydrology reports confirmed comments from West and Rael, both of whom took pains to explain the complexities of drainage to the reporter.

In an Oct. 19, 1997, letter to Rael, Waltz says, “While the impact of the Group 3 project may be unclear, the impacts of the Town’s well No. 5 are clear. That well of the Town is impairing your water rights.”
Mayordomo Rael sent a letter, dated Oct. 17, 2007, to the New Mexico Office of the State Engineer requesting an investigation to “take whatever enforcement action you can to prevent or stop the impairment of our water rights.”

SENATE MEMORIAL 64
48th legislature – STATE OF NEW MEXICO – second session, 2008
INTRODUCED BY
Carlos R. Cisneros

A MEMORIAL
REQUESTING THE STATE ENGINEER TO INVESTIGATE IMPAIRMENT OF HISTORICAL WATER RIGHTS OF THE SPRING DITCH IN TAOS AND TAKE ANY APPROPRIATE ACTION TO GUARANTEE DELIVERY OF WATER TO DITCH PARCIANTES.

WHEREAS, the town of Taos has approved developments that have resulted in construction on the town’s water source and the point of diversion, thereby impairing delivery of water to rightful water rights owners and parciantes on the Spring ditch; and

WHEREAS, the course of an ancient acequia has been altered by the town of Taos; and

WHEREAS, permits have been issued allowing construction on lateral ditches;

NOW, THEREFORE, BE IT RESOLVED BY THE SENATE OF THE STATE OF NEW MEXICO that the state engineer be requested to investigate impairment of historical water rights of the Spring ditch by the town of Taos and take any appropriate action to guarantee delivery of water to ditch parciantes; and

BE IT FURTHER RESOLVED that the state engineer report to the appropriate committee of the legislature by August 1, 2008 the results of the investigation and actions taken to remedy the impairment; and

BE IT FURTHER RESOLVED that a copy of this memorial be transmitted to the state engineer.

New Mexico Statutes Annotated 1978

73-2-4. [Preference right for irrigation; obstruction.]

No inhabitant of this state shall have the right to construct any building of the impediment of the irrigation of lands or fields, such as mills or any other property that may obstruct the course of the water; as the irrigation of the fields should be preferable to all others.

73-2-6. [Ancient ditches protected.]
The course of ditches or acequias established prior to July 20, 1851, shall not be disturbed.

73-2-64. Interference with ditch; illegal water use; penalty; failure to prosecute; injunctive relief.

A. A person shall not, contrary to the order of the mayordomo or commission, cut, break, stop up or otherwise interfere with any community ditch or dam in this state, or any contra or lateral acequia thereof, or take or use water from the same contrary to such orders. A person who violates a provision of this section is guilty of a misdemeanor, and, on complaint made before the nearest magistrate court, a warrant may issue for his arrest, as in case of any other offense against the state.

B. A criminal complaint for violations of the provisions of Subsection A of this section may be made by the district attorney or the mayordomo or commission of the ditch or acequia to the magistrate court in the county where the violation occurred. Upon conviction of a violation, the defendant shall be fined not less than three hundred dollars ($300) or more than one thousand dollars ($1,000) and in default of the payment of said fine, shall be confined in the county jail for a period of not less than five nor more than thirty days.

C. In addition to criminal prosecution, the district attorney or the mayordomo or commission of the ditch or acequia may file a civil complaint seeking a civil penalty not to exceed five thousand dollars ($5,000) for knowingly, intentionally or willfully violating the provisions of Subsection A of this section.

D. The remedies provided for in this section shall not be construed as limiting the right of the party bringing the civil or criminal complaint from seeking damages. In addition to the remedies provided in this section, the district attorney or the mayordomo or commission of the ditch or acequia may apply to the district court of the county where the violation occurred for an injunction restraining any person from violating or continuing to violate the provisions of Subsection A of this section.

E. It is the duty of the mayordomo in charge of any such ditch or acequia to prosecute in the name of the state any violation of this section whenever the mayordomo acquires knowledge thereof, and the mayordomo’s failure so to do shall be deemed a misdemeanor; provided, however, that if the district attorney chooses to prosecute, the mayordomo shall not be required to do so. On conviction of violating the provisions of this subsection, the mayordomo shall be fined in a sum not less than twenty-five dollars ($25.00) or more than fifty dollars ($50.00) or by imprisonment in the county jail for not less than ten or more than thirty days.

73-2-55.1. Water banking; acequias and community ditches.

An acequia or community ditch may establish a water bank for the purpose of temporarily reallocating water without change of purpose of use or point of diversion to augment the water supplies available for the places of use served by the acequia or community ditch. The acequia or community ditch water bank may make temporary transfers of place of use without formal proceedings before the state engineer, and water rights placed in the acequia or community ditch water bank shall not be subject to loss for non-use during the period the rights are placed in the water bank. An acequia or community ditch water bank established pursuant to this section is not subject to recognition or approval by the interstate stream commission or the state engineer.

73-2-21. Commissioners’ powers and duties; mayordomo’s duties.

E. Pursuant to the rules or bylaws duly adopted by its members, an acequia or community ditch may require that a change in point of diversion or place or purpose of use of a water right served by the acequia or community ditch, or a change in a water right so that it is moved into and then served by the acequia or community ditch, shall be subject to approval by the commissioners of the acequia or community ditch. The change may be denied only if the commissioners determine that it would be detrimental to the acequia or community ditch or its members. The commissioners shall render a written decision explaining the reasons for the decision. If the person proposing the change or a member of the acequia or community ditch is aggrieved by the decision of the commissioners, he may appeal the decision in the district court of the county in which the acequia or community ditch is located within thirty days of the date of the decision. The court may set aside, reverse or remand the decision if it determines that the commissioners acted fraudulently, arbitrarily or capriciously, or that they did not act in accordance with law.