Appendix — United States v. New Mexico
Supreme Court brief1978
Ask Donna
What actually matters in this document.
Text
APPENDIX \
Supreme Court, U. &.
FILED
} FEB 28 1978
9
N. CLERK |
*
Iu the Supreme Cuurt uf the United States
OCTOBER TERM, 1977
No. 77-510
UNITED STATES OF AMERICA,
Petitioner
—
STATE OF NEW MEXICO
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF THE STATE OF NEW MEXICO
PETITION FOR WRIT OF CERTIORARI FILED OCTOBER 3, 1977
CERTIORARI GRANTED JANUARY 9, 1978
Iu the Supreme Court of the United States
OCTOBER TERM, 1977
No. 77-510
UNITED STATES OF AMERICA,
Petitioner
—v.—
STATE OF NEW MEXICO
ON WRIT OF CERTIORARI TO THE SUPREME COURT
OF THE STATE OF NEW MEXICO
TABLE OF CONTENTS
Page
Relevant Docket Entries of Supreme Court of the State of
r ee ee 1
Docket Entries of the Sixth Judicial District, County of
I de el 2
DISTRICT COURT OF THE SIXTH JUDICIAL
DISTRICT IN AND FOR THE COUNTY OF
LUNA, STATE OF NEW MEXICO
I . 11
Motion for leave to intervene (July 31, 1970) 13
, . . ae SOT Oe NT 16
Complaint in intervention (July 31, 19700) Be RL EE Pome 16
Notice of lis pendens (Sept. 8, 1970 16
r Se nS OD Le ae Ee eee 21
n ae ee Ss Ee Re 22
Order of reference (Dec. 18, 1970) 0000 23
Affidavit of service (Mar. 2, 1971) 25
ii TABLE OF CONTENTS—Continued
Answer of United States to complaint in intervention (Aug.
eee ....
Notice of hearing (Aug. 4, 19711777) „
Extract of pretrial order (Oct. 25, 19727777
Extract of brief for State of New Mexico (Nov. 30, 1972)...
“aie of pretrial memorandum of United States (Nov. 30,
= of hearing before special master on October 9,
EER a
RE ..... le ee
Letter dated Sept. 17, 1974, from special master to counsel...
Letter dated Nov. 22, 1974, from Mr. Simms to special
BRERA
State’s first proposed findings of fact and conclusions of law
e 2. ¼ ö
Letter dated Dec. 5, 1974, from special master to Mr. Simms..
Objections of United States to proposed findings of fact and
conclusions of law submitted by State of New Mexico on
ee scsithnmemnasaonvanestonss
State’s memorandum brief (Jan. 31, 1975)...
Letter dated Feb. 24, 1975, from Mr. Simms to special master..
Letter dated Mar. 7, 1975, from Mr. Simms to special master..
Letter dated Mar. 11, 1975, from special master to Mr.
Ee Sie eta aS E.R ace en Alone
State’s second proposed findings of fact and conclusions of
e 9 sanpstipenomnbnetiionsns
Objections of United States to proposed findings of fact and
conclusions of law submitted by State of New Mexico on
e
Report of special master (May 5, 1975)
State’s objections to master’s report (May 15, 1975)
Letter dated Sept. 2, 1975 from Mr. Simms to Mr. Redd
Letter dated Feb. 4, 1976 from Mr. Simms to Judge Hodges
137
139
148
150
153
171
172
174
176
TABLE OF CONTENTS—Continued
Objections of United States to proposed order submitted by
State Engineer sustaining objections and modifying find-
ings of fact and conclusions of law (submitted to state
fudge Ape. 16, 80000 —r＋ßV*·——ß—ß＋—ß——§ß§5—ðv7õPr! Qk4.
Letter dated Apr. 27, 1976 from Mr. Simms to Judge Hodges.
Order sustaining objections and modifying findings of fact
and conclusions of law (June 4, 19790
Notice of appeal (July 2, 17060 ————————.—
Notice of taking appeal (July 2, 197)60))))mꝛ: :
SUPREME COURT OF THE
STATE OF NEW MEXICO
Opinion (reported 564 P.2d 61500)
Ireen renee
SUPREME COURT OF THE
UNITED STATES
Order extending time to file petition for writ of certiorari
f cenecctnicscecerccencsienetensrcemmmrsesememmmnieetinens
Order of the Supreme Court granting the petition for writ of
certiorari entered January 9, 197882222
242
244
RELEVANT DOCKET ENTRIES OF
SUPREME COURT OF THE
STATE OF NEW MEXICO
DATE PROCEEDINGS
1976
August 26 Skeleton transcript
September 2 Request for oral argument
November 9 Transcript of record (5 volumes)
November 9 Stipulation
December 22 Brief-in-chief
December 22 Certificate of service
1977
January 10 Answer brief
January 10 Certificate of service (letter)
February 7 Argued and submitted
May 23 Opinion
May 23 Order affirming
June 3 Mandate
June 8 Receipt for mandate
1978
January 13 Order U.S. Supreme Court granting certiorari
(1)
2
JUDGE’S DOCKET,
LUNA COUNTY, NEW MEXICO
Case No. 6326
MIMBRES VALLEY IRRIGATION COMPANY,
a non-profit corporation, PLAINTIFF
v8.
Tony SALOPAK, d/b/a SALOPAK Farms, &
HENRY SCHLOUTHER, LEE BAKER & J. W. Hurt,
INTERVENORS
SOUTHERN Paciric & GuyTon B. Hays,
Comm. of Public Lands of N.M., INTERVENOR, et al.
Nature of Action: Damages (by Diversion of water)
Benjamin M. Sherman, for Plaintiff
I. M. Smalley, E. L. Mechem, Attys White, Gilbert,
Koch & Kelly, William O. Jordan, Sp. Ass. Atty Gen.,
et al., Attorneys
OO
— v—-„—
DATE PROCEEDINGS N
1966
Mar. 21 Adv. St. & Co. fees
Mar. 21 Filing Complaint
Mar. 21 Issuing Summons & copies
Mar. 22 Filing & Entering Temporary Restraining Order
& Order to Show Cause
Mar. 22 Filing & Entering Bond
Mar. 28 Issuing Subpoenas & copies to Victor Trujillo &
Lewis Putnam
Mar. 28 Filing Summons & Sheriff’s Return (Tony Salo-
pak)
3
— ü
DATE PROCEEDINGS
1966
Mar. 28 Filing Summons & Sheriff’s Return (Henry
Schlouther) & Aff. of Serv.
Mar. 28 Filing Motion
Mar. 28 Filing & Entering Order Nunc Pro Tunc
Mar. 29 Filing Motion to Dismiss
Mar. 29 Filing Answer of Henry Schlothauer
Apr. 4 Filing & Entering Temp. Injunction (Dated 3/31/
66
Apr. 4 Filing Motion & Notice (to Intervene)
Apr. 4 Filing Complaint in Intervention
Apr. 12 Filing & Entering Order (Baker & Hurt to Inter-
vene)
Apr. 20 Filing Answer of Tony Salopak
May 5 Filing Answer to Complaint in Intervention
May 17 Filing Stipulation
May 17 Filing Motion
May 17 Filing Notice
Jun. 10 Filing Motion to Intervene & certif. of mailing
Jun. 10 Filing & Entering Order (allowing appearance of
Public Lands to file pleading)
Jun. 10 Filing Answer of Intervening Comm. of Public
Lands
Jul. 22 Filing Motion to Intervene (Southern Pacific Co.)
Jul. 22 Filing Answer of Southern Pacific Co. to Com-
plaint & Crossclaim
Jul. 22 Filing Notice (Hearing)
— —
DATE PROCEEDINGS
1966
Jul. 22 Filing Answer of So
uthern Pac. Co. to i
of Interv. of Pitf. Intervenors Baker & Hurt —
Jul. 22 Filing Certificate of Service
Aug. 1 Filing Amended Crossclaim (Southern Pacific Co.)
Aug. 2 Filing & Enterin ˖
g Order (allowing Southern
Co. to enter appearance & pleading —
Aug. 3 Issuing Subpoenas & copi b N
Gilbert Williams copies to: Oscar Goldsmith &
Aug. 9 Filing Subpoenas & Sheriff’s Return (Williams)
Aug. 9 Filing Subpoenas & Sheriff’s Return (Goldsmith)
Aug. 10 Issuing Subpoenas Duces Tecum (L. T. Putnam)
Aug. 15 Filing Reply to Amended i
Crossclaim of I
Southern Pacifie Co., by Hurt & Baker 1 21
Aug. 16 Issuing Subpoena & copy (Thurmond Yates)
Aug. 29 Issuing Subpoena & Bartle
bhi
Aug. 29 Filing Subpoena Duces Tecum & Sheriff’s Return
Aug. 30 Issuing Subpoena & Copy (W.P. Stevens)
Aug. 30 Filing Subpoena & Sheriff’s Return (Yates)
Aug. 30 Filing Subpoena Duces Tecum & Sheriff’s Return
Sep. 20 Filing Transcript of Proceedings
Oct. 11 Filing Amended Answer
, of Intervening Commi
sioner of Public Lands of the St. of N — ico -
Oct. 25 Filing & Entering Stipulation
Oct. 26 Filing Notice of Taki iti
— ng Deposition on Written In-
Dec. 5 Filing Written Interrogatories
— — —
DATE PROCEEDINGS
1967
Jan. 24 Filing & Entering Order (St. Engineer make hy-
drographic survey)
Feb. 27 Filing & Entering Order (Court reserves jurisdic-
tion on above Order)
1970
Jul. 31 Filing Motion for Leave to Intervene
Jul. 31 Filing & Entering Order (allowing St. Engineer
to Intervene)
Jul. 31 Filing Complaint in Intervention
Jul. 31 Filing Maps
Jul. 31 Filing Mimbres River Hydrographic Survey Report
Volume I
Aug. 17 Filing Motion (for setting aside Order of Inter-
vention)
Aug. 17 Filing Notice (hearing Aug. 25, 1970 at 10 AM)
Sep. 3 Filing Certificate of Service (Motion to Intervene,
to Attys of Record)
Sep. 3 Filing Notice to Take Deposition (of Jack Upton)
Sep. 8 Filing Notice of Lis Pendens & Exhibits “A” & “B”
Sep. 15 Filing & Entering Order (Motion to set aside Or-
der of Intervention—Denied)
Sep. 15 Filing & Entering Order Substituting Parties
Dec. 4 Filing Motion (for Special Master & Referee
Dec. 18 Issuing Summons & copies to U.S.A. for Plaintiff
in Intervention
Dec. 18 Issuing Summons (for 900 Defendants) for Plain-
tiff in Intervention
DATE PROCEEDINGS
1970
Dec. 18 Filing & Entering Order of Reference (Irvin S.
Moise, Sp. Master & Referee)
1971
Jan. 15 Filing First Motion to Join Additional Parties De-
fendant
Jan. 15 Filing First Motion to Correct Defendants’ Names
Jan. 26 Filing & Entering First Order to Joi iti
Parties Defendant 9
Jan. 26 Filing & Entering First Order to Correct Defend-
ants’ Names
Feb. 9 Filing Second Motion to Join Additi
Defendant onal Parties
Feb. 9 Filing & Entering Second Order to Join Additional
Parties Defendant (Town of Sil i i
— ver City & Village of
Mar. 2 Filing Affidavit of Service (Mr. Victo <a
° 1
U.S. Atty & Hon. John N. Mitchell, Atty Gen.)
May 25 Filing Answer of Tony Salo i
6 tue be tae pak (Sub-File Nos 712
May 25 Filing Answer of H i
enry Schlotha Com
in Intervention none *
Jun. 14 Filing Third Motion to Join Additi
Defendant n Additional Parties
Jun. 15 Filing & Entering Third Ord ini iti
— Seiten er Joining Additional
Jun. 15 Filing Second Motion to p
4 Correct Defendants
Jun. 15 Filing & Entering Second Ord Correct
fendants’ Names n 5
*r — — — 2
7
—
DATE PROCEEDINGS
1971
Jul. 20 Filing Third Motion to Correct Defendants’ Names
Jul. 20 Filing Fourth Motion to Join Additional Parties
Defendant
Jul. 22 Filing Fifth Motion to Join Additional Parties De-
fendant
Jul. 27 Filing & Entering Third Order Correcting Defend-
ants’ Names
Jul. 27 Filing & Entering Fourth Order Joining Additional
Parties Defendant
Jul. 27 Filing & Entering Fifth Order Joining Additional
Party Defendant
Aug. 2 Filing Answer to Complaint in Intervention by
U.S. of America
Aug. 4 Filing Notice of Hearing (9/16/71 9 AM Sp. Mas-
ter, Irwin S. Moise, apptd.)
Aug. 4 Filing Certificate of mailing
Aug. 10 Filing Fourth Motion to Correct Defendants’
Names
Aug. 10 Filing & Entering Fourth Order Correcting De-
fendants’ Names
Sep. 7 Filing Certificate of Mailing (of Answer of U. S.
to Comp. in Intervention)
Oct. 29 Filing Sixth Motion to Join Additional Parties
Defendant
Oct. 29 Filing Fifth Motion to Correct Defendants’ Names
Nov. 2 Filing & Entering Sixth Order Joining Additional
Parties Defendant
Nov. 2 Filing & Entering Fifth Order Correcting Defend-
ants’ Names
P
8
DATE PROCEEDINGS
1971
Dec. 1 Filing Seventh Motion to Join Additional Parties
Defendant
Dec. 1 Filing Sixth Motion to Correct Defendants’ Names
Dec. 7 Filing & Entering Seventh Order Joining Additional
Parties Defendant
Dec. 6 Filing & Entering Sixth Order Correcting Defend-
ants’ Names
1972
Feb. 4 Filing Interrogatories by Def. Henry Schlothauer
Feb. 9 Filing Oral Depositions of Ledru Hyatt & Edward
W. Nunn, Sr.
Feb. 15 Filing Motion for Protective Order
Oct. 12 Filing Appearance (State Engineer)
Oct. 25 Filing & Entering Pre-Trial Order
Nov. 30 Filing Brief for Plaintiff-In-Intervention (by Rich-
ard Simms, Sp. Asst’ Atty Gen, St. Engineer, Santa Fe)
Dec. 18 Filing Pre-Trial Memorandum (of the U.S.)
Dec. 29 Filing copy of letter of Richard A. Simms, Spec.
Asst. Atty Gen, requesting extention of time to Jan. 5
to file brief
1973
Jan. 10 Filing Response to Pre-Trial brief for Plaintiff-In-
Intervention
Jan. 10 Filing Certificate of mailing
Oct. 8 Filing Praecipe
Oct. 8 Issuing Subpoenas & copies to Regis McSherry,
Adan Baca & Tom Anderson, Dist. Cons.
—
— —
DATE PROCEEDINGS
1973
Oct. 9 Filing Subpoenas & Sheriff’s Return (Adan Baca)
Oct. 15 Filing Subpoenas & Sheriff's Return (Regis Mc-
Sherry)
Oct. 15 Filing Subpoenas & Sheriff’s Return (Tom Ander-
son)
Dec. 17 Filing Fees & Costs of Special Master, copy of
charges attached
Dec. 17 Filing & Entering Order (costs to be paid by
State Engineer & U.S. of A.)
1974
Sep. 26 Filing 11 Affidavits of Service (May 22, 1971 thru
Aug. 28, 1971)
1975
Jan. 18 Filing Objections to Proposed Findings of Fact &
Etc. of the State of N. M.
Jan. 18 Filing Certificate of Mailing
Apr. 2 Filing Objections to Prop. Findings of Fact, etc.,
by U.S. & ce of Certif. of mailing
May 5 Filing & Entering Findings of Fact & Conclusions
of Law (as to water rights of US.)
May 15 Filing Objections to Master’s Report
i Gen. to Atty
3 Filing Letter of Spec. Assistant Atty
es Redd in Washington, D.C. (hearing on Feb. 2, 1976
10 AM)
1976
May 10 Filing Mimbres River Hydrographic Survey Re-
port Vol II—Sub-Section I
10
EE —nn— . —xß— cs
DATE PROCEEDINGS
1976
May 10 Filing Key Ma
p of Mimbres River Hydrogra
May 10 Issuing Summons &
i
gineer’s Office, & fili copies & returning to St. En-
May 21 j
ash ata ng Seventh Motion to Correct Defendants’
May 21 Filing & Entering Sev
tendants Names enth Order Correcting De-
May 21 Filing Eighth Moti
Defendant otion to Join Additional Parties
May 21 Filing & Enteri
ng Eighth Ord .
tional Parties Defendant er Joining Addi
June 4 Filing Objections to Proposed
Order Submitted
State Engineer Sustaining Objections, etc. ‘ *
June 4 Filing & Entering Order 8
ustaining Objections &
Modifying Findings of Fact & Conclusions — Law .
June 14 Filing Ninth Moti
Defendant on to Join Additional Parties
June 14 Filing Exhibits (U.S. & St. Serv
; of N.M.— —
ice —Recv'd of Judge Norman Hodges) *
June 14 Filing & Entering Ninth Order
Parties Defendant nr een
July 2 Filing Notice of Appeal (Filed
culture Forest Service, USA) ' ee
July 2 Filing Notice of Taking Appeal
July 2 Filing Praecipe (for Complete Record)
—
11
IN THE DISTRICT COURT OF THE
SIXTH JUDICIAL DISTRICT OF THE
STATE OF NEW MEXICO,
WITHIN AND FOR THE COUNTY OF LUNA
No. 6326
MIMBRES VALLEY IRRIGATION Co.,
a non-profit corporation, PLAINTIFF
v8.
Tony SALOPAK, dba Salopak Farms,
and HENERY SCHLOUTHAUER, DEFENDANTS
LEE BAKER and J. W. Hurt, Individually, INTERVENORS
Guyton B. Hays, Commissioner of Public Lands of the
State Of New Mexico, INTERVENOR
SOUTHERN PACIFIC COMPANY, INTERVENOR
Filed Jan. 24, 1967
ORDER
This matter coming before the Court for trial without
a Jury and having been tried on March 29th & 30th,
1966, and on October 11th through 13th, 1966, and the
Court having considered the evidence and being of the
opinion that a decision cannot be made in this matter
without a hydrographic survey being made as to the
surface water rights of the Mimbres River stream system
located in the Counties of Grant and Luna within the
State of New Mexico.
NOW, THEREFORE BE IT ORDERED that the State
Engineer of the State of New Mexico be, and he is here-
by directed, pursuant to the provision of Section 74-4-6
N.M.S.A. Comp. (Supp.) to forthwith make and furnish
to this Court a Complete hydrographic survey of the sur-
—— —
12
face waters of the Mimbres River within the Counties
of Grant and Luna in New Mexico, and that such
hydrographic survey be commenced forthwith and com-
pleted as soon as same may conviently be done.
Dated the 24th day of January, 1967.
/8/ Norman Hodges
District Judge
13
IN THE DISTRICT COURT OF THE
SIXTH JUDICIAL DISTRICT
IN AND FOR THE COUNTY OF LUNA
MIMBRES VALLEY IRRIGATION Co.,
a non-profit corporation, PLAINTIFF
—vs.—
Tony SALOPAK, dba Salopak Farms,
and HENRY SCHLOUTHER, et al., DEFENDANTS
STATE OF NEW MEXICO, ex rel.
S. E. Reynolds, State Engineer,
PETITIONER FOR INTERVENTION
Filed July 31, 1970
MOTION FOR LEAVE TO INTERVENE
COMES NOW the State of New Mexico, on the rela-
tion of S. E. Reynolds, State Engineer, and respectfully
moves this Court to issue its Order allowing the State
of New Mexico, on the relation of S. E. Reynolds, State
Engineer, to intervene in the above-styled and captioned
cause as a Plaintiff-in-Intervention, and as its grounds
therefor states:
1. The above-styled and captioned cause seeks a de-
termination of the relative rights of the parties thereto
in public waters of the Mimbres River Stream System;
2. This Court has ordered, and the State Engineer has
completed and filed in this cause, a hydrographic survey
of the Mimbres River Stream System ;
3. Section 75-4-6, N. M. S.A. 1953 Comp., requires that
in all suits involving the determination of rights to public
waters in any stream system, all known and unknown
claimants of interest therein should be joined, a hydro-
graphic survey performed, and provides for the interven-
tion by the State of New Mexico to accomplish a com-
prehensive and orderly adjudication of all such claims.
14 | 15
WHEREFORE, Movant requests leave to intervene on | N IN THE DISTRICT COURT OF THE
the Complaint-in-Intervention attached hereto and sub- | SIXTH JUDICIAL DISTRICT
mitted herewith. | IN AND FOR THE COUNTY OF LUNA
Respectfully submitted, | MIMBRES VALLEY IRRIGATION Co.,
| a non-profit corporation, PLAINTIFF
PAUL L. BLOOM 1 ~~
PETER THOMAS WHITE
: | TONY SALOPAK, dba Salopak Farms
Special Assistant Attorneys General ; 6
State Engineer Office and HENRY SCHLOUTHER, et al., DEFENDANTS
tate Capitol
Santa Fe, New Mexico 87501 ) M 1 2
ATTORNEYS FOR NEW MEXICO STATE ; PETITIONER FOR INTERVENTION
ENGINEER
Filed July 31, 1970]
ORDER
By /s/ Paul L. Bloom | THIS MATTER coming on to be heard upon the Mo-
tion of the State of New Mexico for leave to intervene
and the Court having considered the Motion and being
/ otherwise advised in the premises finds that it should
be and it is hereby granted.
:
/s/ Norman Hodges
District Judge
16
IN THE DISTRICT COURT OF THE
SIXTH JUDICIAL DISTRICT IN AND FOR THE
COUNTY OF LUNA, STATE OF NEW MEXICO
No. 6326
MIMBRES VALLEY IRRIGATION Co.,
a non-profit corporation, PLAINTIFF
U.
TONY SALOPEK, dba Salopek Farms,
and HENRY SCHLOUTHAUER, DEFENDANTS
LEE BAKER and J. W. Hurt, individually, INTERVENORS
GuYTON B. Hays, Commissioner of Public Lands of the
State of New Mexico, INTERVENOR
SOUTHERN PACIFIC COMPANY, INTERVENOR
STATE OF NEW MEXICO, ex rel.
S. E. Reynolds, State Engineer,
PLAINTIFF-IN-INTERVENTION
V.
ESTATE OF DAVID ABRAHAM * * * [approximately 244
defendants-in-intervention omitted] * * * Fort BAYARD
MILITARY RESERVATION * * * [approximately 658 de-
fendants-in-intervention omitted] * * * UNrrep STATES
OF AMERICA * * * [approximately 98 defendants-in-
intervention omitted] * * * ALL UNKNOWN HEIRS oF
ANY PERSON NAMED ABOVE, AND ALL CLAIMANTS OF
INTEREST TO WATER IN THE MIMBRES RIVER STREAM
SYSTEM, DEFENDANTS-IN-INTERVENTION
| Filed July 31, 1970
COMPLAINT-IN-INTERVENTION
COMES NOW State of New Mexico, on the relation of
S. E. Reynolds, State Engineer, Plaintiff-Intervenor, by
and through its attorneys, and states:
— ——— ß
17
I.
E. Reynolds is the duly appointed, and qualified, State
8 the State of New Mexico, charged by law
with the supervision of the apportionment of public waters
of the State according to the licenses issued by him and
his predecessors and the adjudications of the Courts.
II.
This action arises under Sections 75-4-2, 75-4-4, 75-4-6,
75-4-7, 75-1-8, New Mexico Statutes Annotated, 1953
Compilation.
III.
The Mimbres River, its surface-water tributaries, and the
underground waters tributary and related thereto, in-
cluding all public waters within the Mimbres Under-
ground Water Basin, constitute a stream system of the
State of New Mexico.
IV.
The surface and underground waters of the Mimbres
River Stream System are public waters of the State of
New Mexico, subject to appropriation for beneficial use
as provided by law.
V.
S8. E. Reynolds, State Engineer, has caused to be under-
taken a i survey of the Mimbres River Stream
System, and a report of a portion of this survey has been
filed with the Court; a remaining portion of the report
will be filed with the Court upon completion.
VI.
The Plaintiff-Intervenor is informed and believes, and
therefore avers, that the Defendants, and each of them
named in this Complaint, claim rights to take and use
18
the waters of the Mimbres River Stream System, and
base their claims upon the Constitution and laws of the
State of New Mexico.
VII.
The claims of the Defendants, and each of them, to the
waters of the Mimbres River Stream System, as against
each other and as against the State of New Mexico, have
never been fully determined and decreed by the Courts.
VIII.
Unless this Court determine and deeree the rights of
the Defendants, and each of them, to the waters of the
Mimbres River Stream System, as against each other
and as against the State of New Mexico, the administra-
tion and supervision of the waters of the Mimbres River
Stream System required by law will be impossible.
WHEREFORE, Plaintiff-Intervenor respectfully prays:
1. That this honorable Court appoint its master to
take evidence and make his report on all questions of
fact and law, which report shall determine all general
and specific issues of fact properly arising in this action,
and to make such findings of fact and conclusions of law
as may appear to him necessary and proper;
2. That the Defendants, and each of them, be required
to appear before the Court and describe fully and in
detail what rights, if any, they claim to the use of the
water in the said Mimbres River Stream System, and
more specifically to state:
a. When said water right was initiated;
b. If a water right for irrigation is claimed, the
lands to which it is appurtenant;
e. Source of water;
d. Purpose for which it is used;
e. The amount of water necessary for the beneficial
use for which it was appropriated;
ome
K 2 —ũ—.ũ vii
— «ä
19
f. Such other matters as may be necessary to define
a particular right and its priority;
3. That the Court determine and define the water
rights of each of the several defendants, as against the
State of New Mexico and inter sense, and enter its de-
cree stating:
a. The water rights adjudged each party;
b. The source, priority, amount, purpose, periods,
and place of use of each right;
e. The specific tracts of land to which the water
right for irrigation is appurtenant;
d. Such other matters as may be necessary to de-
fine a particular right and its priority;
4. That the Court enter its Order enjoining all illegal
use of surface and underground waters of the Mimbres
River Stream System, and where necessary require meas-
uring devices at points of diversion in this stream sys-
1 That the Court name additional parties from time
to time as it appears necessary for the determination and
adjudication of all the water rights of the Mimbres River
Stream System; 2
6. That the Court enter such preliminary, interlocu-
tory, and final orders as are necessary to a final determi-
nation and adjudication of all water rights of the Mimbres
River Stream System.
PAUL L. BLOOM
PETER THOMAS WHITE
Special Assistant Attorneys General
State Engineer Office, State Capitol
Santa Fe, New Mexico 87501
ATTOREYS FOR NEW MEXICO STATE
ENGINEER
By /s/ Paul C. Bloom
20
[Filed in State District Court Sept. 8, 1970
NOTICE OF LIS PENDENS
NOTICE IS HEREBY GIVEN that there is now pend-
ing in the District Court of the Sixth Judicial District
of New Mexico the above-styled and numbered cause.
The parties defendant are listed in Exhibit “A” attached
hereto, and made a part hereof. This suit affects or con-
cerns the title to water rights located in Grant and Luna
Counties, and the defendants claim a right to the waters
of the Mimbres River Stream System, as more particu-
larly described in Exhibit “B”, attached hereto and made
a part hereof, and further affects or concerns water
rights for municipal, domestic, industrial, or manufactur-
ing uses where the point of diversion or use is within the
boundaries of the Mimbres River Stream System.
The object of this suit is to adjudicate all the uses of
surface and groundwaters of the Mimbres River Stream
System and to enjoin all illegal use of said waters.
/s/ Peter Thomas White
PETER THOMAS WHITE
Special Assistant Attorney General
State Engineer Office, State Capitol
Santa Fe, New Mexico 87501
ATTORNEY FOR S. E. REYNOLDs,
NEW MEXxIco STATE ENGINEER
CO th RM AOL pe DP ORR MPO AP + vk he
+ 20d *
to. ahaa Pee
524 * wm
21
EXHIBIT A
Name
* * — *
Fort Bayard Military Reservation
a * 7
U.S.A., Dept. of Agriculture, Forest Service
U.S. A., Federal Aviation Agency
Sub-File
n Ge LIGIHXG 096 5 ud 2H 2 5
uo
N ahd a
9.2 ' eam 4s ’ 1 ;
sea ot rr o . — * 1 * 900 0
„, — . rt — tf i —
l t Fes
in *
9001 a
g t | deers
0 : | * 8 1
on = ene ea 4 X. — Rr 1 4. 2 td gare -
J VI 1 un
228282823 22
tar + 2 9401
Li%
114
1 1
101 i 1 | $3
2 *
„
1 => 8
1 N.
.
seta * * see.
, T 1
— 1
} |
51 ' i t 4 2B „01
~ i * i N it Derr
mi =~ 1 mer
f iN ‘ H
i 7 4
21 5 en ora
4
+
"ae — sie
i
21 H * 1 1 1
＋ TL
* i
K 8
* J ~~ 1 FE.
1 ; 1 a 55
eur * : a 88. on
re | ais!
LI 4 u . a
aoe i TTT SS TL LI wean 1
1 PELNMTL III r 22
: 12 A es teas
v . $3.) ANN TT TTT TET See
EL 8 N Wirst etre
LI ST | es ers
= ALNNOD, veo | ! >\ <1 \ 1 . . bi LL
Gin es oN Tt eer) ss)
1 4 7 8 aT TN 17 Kin 17 a 2
‘sea 1 3 8 i — — outa
r J Poorer oo »
A inn eee ‘
j LLL m= *
14 — || L >
> oom *
101 4 1 — 2
“t-+ 7 — — 25 *
21.4 — 7 i } —
on 1 LN — Lit yA >
2 . — . bY : — — *
e aay .
sua hirer \ } * 11 °
H N t are sd *
SS, | x." *
+: * 2
pel 1 | | ene 0
ode 1444.4 _IN' 1
. * 5 JJ 10
won eee *
er „ U
coors ING:
Ann ane
— 1 11 a”
soa enn 5
- qe abe > *
2 *
4
ay rr @
rT T sue .*
ema Setter *
4
: *
0461
BIINIOND JAS NIN N
NISVG NZ. M GNACUOUTCAT AST. 6 ZN
— dee Ee — Cae — —
— — — — — ä — — — — aalalapiee
23
Filed in State Distriet Court Dec. 18, 1970
ORDER OF REFERENCE
THIS MATTER came on to be considered upon the
motion of the plaintiff, State of New Mexico ex rel. S. E.
Reynolds, State Engineer, praying that the Court appoint
Irwin S. Moise as the Special Master and Referee in this
cause, and the Court having considered said motion and
being otherwise fully advised in the premises finds:
1. That this cause involves more than 900 defendants;
2. That the plaintiff- in- intervention has reason to be-
lieve from previous experience in the adjudication
of water rights that a substantial number of de-
fendants will contest the Offers of Judgment made
to them and as to each such defendant a hearing
may be required.
3. That the appointment of Irwin S. Moise as the
Special Master in this cause will permit consider-
able economies in the time of this Court and will
provide a more speedy and inexpensive determina-
tion of particular questions of fact and law.
IT IS THEREFORE ORDERED that Irwin S. Moise
should be and he is hereby appointed Special Master and
Referee in this cause.
IT IS FURTHER ORDERED:
2. That the said Special Master shall make inspections,
take testimony and hold hearings at whatsoever
times and places he may deem appropriate on all
contested issues of law or fact in this cause;
2. That he shall make report to the Court at the
conclusion of every hearing or investigation in which
he presides, and each report shall, where appropri-
ate, contain his Findings of Fact and Conclusions
of Law;
24 25
8. That he shall be compensated at the rate of $100.00 | | Filed in State District Court Mar. 2, 1971
per day or $12.50 per hour, plus reimbursement for |
his reasonable and necessary expenses, which ex- | AFFIDAVIT OF SERVICE
penses shall include travel, lodging, and the em- |
ployment of court reporters and interpreters when I hereby certify that on February 9, 1971 I mailed by
required. The Master shall periodically certify his certified mail return receipt requested copies of the State
fees and costs to the Court, which costs, upon ap- of New Mexico ex rel. S. E. Reynolds, State Engineer’s,
proval of the Court, shall be assessed against the | Summons and Complaint-in-Intervention to Mr. Victor
District Court fund; Ortega, U.S. Attorney for the District of New Mexico
a and to the Honorable John N. Mitchell, Attorney General
4. That any party to a proceeding before the Special for the United States of America. Evidence of receipt
Master may appeal from an adverse decision of the of the said Summons and Complaint-in-Intervention is
Master to the Court by filing within ten days after made with attached copies of receipt for certified mail
the filing of the Special Master Report to which
he objects a motion for a trial setting in that
matter.
and signed return receipt card.
DATED this 17th day of December, 1970. ) /s/ Peter Thomas White
PETER THOMAS WHITE
| Special Assistant Attorney General
| State Engineer Office, State Capitol
/8/ Norman Hodges | Santa Fe, New Mexico 87501
Hon. NORMAN HODGES
District J | ATTORNEY FoR S. E. REYNOLDS
ä NEW MEXIcO STATE ENGINEER
Subscribed and sworn to before me this Ist day of March,
1971.
[SEAL }
s, (Mlegible]
Notary Public
My Commission Expires: October 1, 1973
26
Filed in State District Court Aug. 2, 1971]
ANSWER TO COMPLAINT IN INTERVENTION
The United States of America by its duly authorized
Mitwine.
I,
Admits the allegations of paragraph I.
II.
Admits the allegations of paragraph II.
III.
Admits the allegations of paragraph III.
IV.
Denies the allegations of paragraph IV with respect
to waters in and on lands within the State owned by the
United States.
V.
With respect to the allegations of paragraph V the
defendant lacks sufficient knowledge upon which to base
an affirmation or denial.
VI.
With respect to the allegations of paragraph VI the
defendant lacks sufficient knowledge upon which to base
an affirmation or denial.
VIL.
Admits the allegations of paragraph VII.
27
VIII.
With respect to the allegations of paragraph VIII the
defendant lacks sufficient knowledge upon which to base
an affirmation or denial.
IX.
Alleges that it owns lands within the watershed of the
Rio Mimbres which are part of the Gila National Forest.
Those national forest lands in the Rio Mimbres Watershed
located in Sections 23, 26, 27, 28, 32, 33, 34 and 35, T.
138., R.10W., N.M.P.M.; Sections 2, 3, 4, 5, 6, 7, 8, 9,
10, 11, 12, 18, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24,
26, 27, 28, 29, 30, 31, 32, 38, 34 and 35, T.14S., R.10W.,
N.M.P.M.; Sections 1, 10, 11, 12, 18, 14, 15, 21, 22, 23,
24, 25, 26, 27, 28, 29, 32, 33, 34, 35, and 36, T.14S., R.
11W., N.M.P.M.; Sections 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 14,
15, 16, 17, 18, 19, 20, 21, 22, 28, 24, 25, 26, 27, 28, 29,
30, 31, 32, 33, 34, 35 and 36, T.15S., R.10W., N. M. P. M.;
all Sections in T.15S., R.11W., N.M.P.M.; and Sections
12, 13, 14, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34, 35
and 36, T.15S., R.12W., N.M.P.M. were reserved for na-
tional forest use by presidential proclamation dated March
2, 1899. Those national forest lands in the Rio Mimbres
Watershed located in Section 31, T.15S., R.9W., N.M.P.M.;
Sections 4, 5, 6, 7, 8, 9, 10, 15, 16, 17, 18, 19, 20, 21, 28,
29, 30, 31, 32, and 33, T.16S., R.9W., N.M.P.M.; Sections
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 18, 14, 15, 16, 22, 23,
24, 25, 26, 35 and 36, T.16S., R.10W., N. M. P. M.; Sections
1, 2, 3, 4, 12, 18, 19, 30 and 31, T.16S., R.11W., N.M.P.M.;
Sections 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 18, 14, 15, 16,
17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31,
$2, 33, 34, 35, and 36, T.16S., R.12W., N.M.P.M.; Sections
13, 14, 22, 23, 24, 25, 26, 27, 28, 29, 33, 34, 35, 36, T. 168.,
R.13W., N.M.P.M.; Sections 4, 5, 6, 7, 8, 9, 10, 14, 15,
16, 17, 18, 20, 21, 22, 23, 26, 28, 29, 33, 34, 35 and 36,
T.17S., R.g W., N.M.P.M.; Section 1, T. 178., R.10W.,
N.M.P.M.; Sections 6, 7 and 18, T.17S., R.11W.,
N. M. P. M.; Sections 1, 2, 5, 6, 7, 8, 11, 12, 13, 14, 17, 18
and 19, T.17S., R.12W., N.M.P.M.; Sections 1, 2, 3, 4, 9,
10, 11 and 12, T.17S., R. 13 W., N.M.P.M.; and Sections
3, 4 and 5, T.17S., R.14W., N.M.P.M. were reserved for
national forest use by presidential proclamation dated
July 21, 1905. Those national forest lands in the Rio
Mimbres Watershed located in Sections 32 and 33, T. 198.,
R.15W., N.M.P.M. and Sections 4, 5, 6, 7, 8, 9, 16, 17, 18,
19, 20 and 30 of T.20S., R.15W., N.M.P.M. were reserved
for national forest use by presidential proclamation dated
February 6, 1907. Those national forest lands in the Rio
Mimbres Watershed located in Sections 17, 18, 19, 20, 21,
27, 28, 29, 30, 31, 32, 33 and 34, T.16S., R.10W.,
N. M. P. M.; Sections 10, 11, 13 and 24, T.16S., R.11W.,
N.M.P.M.; Sections 2, 3, 10, 11, 12, 13 and 14, T. 178.,
R.10W., N.M.P.M.; Sections 7, 8, 9, 10, 17, 18, 19, 20, 29
and 30, T. 178., R.14W., N.M.P.M. and Sections 12, 13,
14, 24 and 25, T.17S., R.15W., N.M.P.M. were reserved
for national forest use by presidential proclamation dated
June 18, 1908. Those national forest lands in the Rio
Mimbres Watershed located in Sections 5, 6, 7, 8 and 9,
T.16S., R.11W., N.M.P.M.; Sections 5, 8 and 17, T. 178.,
R.11W., N.M.P.M.; Sections 19, 30, 31, and 32, T.17S.,
R.9W., N. M. P. M.; Sections 1, 2, 3, 4, 9, 10, 11, 12, 13,
14, 15 and 16, T. 188., R.9W., N.M.P.M. were reserved
for national forest use by presidential proclamation dated
May 9, 1910.
X.
When these lands were reserved for national forest use,
the unappropriated waters in and on such lands were
withdrawn from private appropriation as against the
United States and were reserved for use on such land by
the United States to the extent necessary for the require-
ments and purposes of said reservation.
XI.
The United States claims rights in and to the use of
so much of the waters of the Rio Mimbres and its tribu-
taries in and on lands of the national forest above de-
scribed as is or may become necessary for the require-
ments and purposes of said national forest reserves having
priority dates of the dates the lands were withdrawn for
national forest use.
XII.
The United States owns lands within the Rio Mimbres
Watershed known as the Ft. Bayard Military Reservation.
This reservation was established by the United States
Army on August 21, 1866. By Executive Order dated
April 16, 1869, the reservation of the Ft. Bayard Military
Reservation was confirmed. By Executive Order dated
July 14, 1906, the legal description of Ft. Bayard Military
Reservation was modified to make the boundaries conform
to those shown on the plats of the General Land Office.
By this Order the boundaries were delineated as follows:
Beginning at a point on the east line of R. 13 W.,
New Mexico Meridian, seven chains north of the
south line of T.17S.; thence running west parallel to
and seven chains north of said tract line, three miles,
more or less, to a point on the west line of Section
34; thence north along the west line of Sections 34,
27, 22, 15 and 10 to a point thirteen chains south of
the north line of the southwest 1-4 of Section 10;
thence east to the west line of northeast 1-4 of south-
west 1-4 of Section 10; thence south to the southwest
corner of same; thence east along the south line of
same and along south line of northwest 1-4 of south-
east 1-4 of Section 10 to the southeast corner of same;
thence north along the same to a point thirteen chains
south of north line southeast 1-4 of Section 10; thence
east parallel to and thirteen chains south of north
line of said quarter section and of south halves of
Sections 11 and 12 to the east line of R.13W.; thence
continue east, on same course, 20.80 chains to the
northeast corner of the reservation; thence south to
said range line and 20.80 chains east therefrom, four
and one-fourth miles, more or less, to a point seven
chains north of township line; thence west to the
point of beginning, containing approximately 8,840
acres.
30
XIII.
By Executive Order dated May 23, 1907, Sections 35
and 36, T.16S., R.13W. and the NV of the NE\4, Section
1; the N % of the NW, Section 2; the SWI of the
NW, Section 11; and the N of the NW\, Section 12,
T.17S., R.13W., N.M.P.M. within the limits of the Gila
National Forest were further withdrawn from sale or
other disposition to protect the water supply of Ft. Bayard
without revoking or cancelling the withdrawal of these
lands as part of the Gila National Forest for forest pur-
poses.
XIV.
By Executive Order dated July 23, 1908, the WIe of
the SW, Section 1; the E½ of the SE, Section 2; the
NI of the NE, the NE of the NW, and the SE%
of the SE, Section 3; the SWA of the NW and Lot 4
of Section 10; all in T.17S., R.183W., N.M.P.M. and Lots
4, 5, 6 and 7, Section 6, T.17S., R.12W., N.M.P.M. within
the limits of the Gila National Forest were further with-
drawn from sale or other disposition to protect the water
supply of Ft. Bayard without revoking or cancelling the
withdrawal of these lands as part of the Gila National
Forest for forest purposes.
XV.
By Executive Order dated November 13, 1908, the SW1,
of the SE, Section 7, and the NW of the NE\4, Sec-
tion 18, T.17S., R.12W., N.M.P.M. within the limits of
the Gila National Forest were further withdrawn from
sale or other disposition to protect the water supply of
Ft. Bayard without revoking or cancelling the withdraw-
als of these lands as part of the Gila National Forest for
forest purposes.
XVI.
By Executive Order dated June 22, 1910, the Eh of
NW, and the Wie of the NE, Section 7, T.17S., R.
31
12W.; the E of the NW, the SE of the NW, and
the E% of the SW%, Section 1, T.17S., R.13W.; the
El, of the NE and Lot 1, Section 11 and Lots 3 and
4, Section 12, T.17S., R.13W., N. M. P. M. within the limits
of the Gila National Forest were further withdrawn
from sale or other disposition to protect the water supply
of Ft. Bayard without revoking or cancelling the with-
drawals of these lands as part of the Gila National Forest
for forest purposes.
XVII.
By Executive Order dated October 22, 1910, the SEY,
of the NW and the SWI of the NE of Section 18,
T. 178., R.12W., N.M.P.M. within the limits of the Gila
National Forest were further withdrawn from sale or
other disposition to protect the water supply of Ft. Bayard
without revoking or cancelling the withdrawals of these
lands as part of the Gila National Forest for forest
purposes.
XVIII.
By Executive Order dated April 24, 1911, the NW
of the NET of Section 10 and the W% of the SEV and
the NE of the SE of Section 3, T.17S., R.13W.,
N.M.P.M. within the limits of the Gila National Forest
were further withdrawn from sale or other disposition to
protect the water supply of Ft. Bayard without revoking
or cancelling the withdrawals of these lands as part of the
Gila National Forest for forest purposes.
XIX.
Ft. Bayard was used for many years as an active
military post and then as an Army hospital. In 1912,
the administration of the hospital was transferred to the
Public Health Service. On May 1, 1922, the administra-
tion of Ft. Bayard was transferred to the Veterans Ad-
ministration. On January 2, 1941, all of the lands of
Ft. Bayard Military Reservation except the SW, of
Section 25, the SE of Section 26, the NE, of Section
32
35, and the NW, of Section 36, all in T.17S., R.13W.,
N.M.P.M., were transferred to the Department of Agri-
culture to be administered as forest lands. The lands
not transferred to the Department of Agriculture were
administered by the Veterans Administration, as a hos-
pital and a cemetery.
XX.
On July 1, 1966, the following described property, to-
gether with the appurtenent water rights was conveyed
to the State of New Mexico to be operated as a hospital:
All that part of the SW, Section 25; SE, Sec-
tion 26; NE, Section 35; and NW14, Section 36,
all in T.17S., R.18W., N.M.P.M., Grant County, New
Mexico, described as follows:
Beginning at Cor. No. 1, which is identical with
the Northwest corner of the SE14, said Section 26;
thence East 1456.34 ft. to Cor. No. 1-A; thence 8.29
43’E., 37.30 ft. to Cor. No. 1-B; thence N.60°17’E.,
21.25 ft. to Cor. No. 1-C; thence N.29°43’W., 24.65
ft. to Cor. No. 1-D; thence East, 2836.62 ft. to Cor.
No. 2; on the North line of the SWA, said Section
25; thence S.18°30’E., 2380.00 ft. to Cor. No. 3;
thence S.57°59’W., 1573.40 ft. to Cor. No. 4; thence
§.23°00’W., 1450.00 ft. to Cor. No. 5; thence East,
400.00 ft. to Cor. No. 6; thence South, 615.00 ft. to
Cor. No. 7 on the South line of the NWA, said Sec-
tion 36; thence 8.8903“ W., 2504.57 ft. to Cor. No.
8 on the South line of the NE, said Section 35
and in the center-line of former U.S. Highway No.
260; thence following the center-line of said highway
the following courses and distances; N.28°13’W.,
1698.80 ft. to Cor. No. 9, a point of curve; thence
Northwesterly on a 7°50’ curve to the left (chord
bearing and distance N.45°54’W., 451.00 ft.) 460.66
ft. to Cor. No. 10, on the West line of the NE1,,
said Section 35; thence N. 143 W., 3493.49 ft. to the
place of beginning. Containing 482.824 acres, more
or less.
Excluding therefrom however;
All that part known as the Fort Bayard Veterans
Administration Cemetery, and described as follows:
Beginning at the Northwest Cor. at a point whence
the Northwest Cor. of the SE14, said Section 26,
bears N.75°30’W., 949.62 ft. dist.; thence S.80°00’
E., 669.00 ft. to the Northeast Cor., thence S.9°55’
W., 960 ft. to the Southeast Cor.; thence N.81°00’
W., 669.00 ft. to the Southwest Cor.; thence N.9°57’
E., 972.00 ft to the place of beginning. Containing
14.833 acres, more or less.
—4 Net Acreage being: 467.991 acres, more or
ess.
XXI.
Of that portion of the SWI of Section 25, the SE
of Section 26, the NEW of Section 35, and the NW%4
of Section 36 in T. 178., R.13W., N. M. P. M. not conveyed
to the State of New Mexico for operation as a hospital,
the following described property is administered by the
Veterans Administration as a military cemetery:
Beginning at the Northwest Cor. at a point whence
the Northwest Cor. of the SEI, said Section 26,
bears N.75°30’W., 949.62 dist.; thence S.80°00’E.,
669.00 ft to the Northeast Cor., thence S.9°55’W.,
960 ft. to the Southeast Cor.; thence N.81°00’W.,
669.00 ft. to the Southwest Cor.; thence N.9°57’E.,
972.00 ft. to the place of beginning. Containing
14.833 acres, more or less.
A right to water for the cemetery needs from the exist-
ing water supply system on the hospital property was
reserved in the deed of conveyance to the State of New
Mexico.
XXII.
The balance of the above described portions of See-
tions 25, 26 35 and 36, T.17S., R.13W., N.M.P.M., not
conveyed to the State of New Mexico or retained for
34
use as a military cemetery was transferred to the ad-
ministration of the Department of Agriculture for a
forest service administration site.
XXIII.
When the lands comprising Ft. Bayard Military Reser-
vation were withdrawn for military use the unappropri-
ated waters in and on such lands were withdrawn from
private appropriation as against the United States and
were reserved for use on such lands to the extent neces-
sary for the requirements and purpose of said reserva-
tion. When the lands within the Gila National Forest
were further withdrawn from sale or other disposition
to protect the water supply of Ft. Bayard the unap-
propriated waters in and on such lands were further
withdrawn from private appropriation as against the
United States and were reserved for use on the Ft.
Bayard Military Reservation by the United States to
the extent necessary for the requirements and purposes
of the military reservation. When the administration
of the Ft. Bayard Military Reservation was transferred
to the Department of Agriculture for forest purposes this
constituted a valid change of use of the reserved water
rights.
XXIV.
The United States claims rights in and to the use of
so much of the waters ul the Rio Mimbres and its tribu-
taries in and on the Ft. Bayard Military Reservation
as is or may become necessary for the requirements and
purposes of the national forest so long as these needs
do not exceed the uses that would have been made of
the waters in and on these lands for military purposes,
had Ft. Bayard remained an active military post, with
a priority date of August 21, 1866.
XXV.
The United States claims rights in and to the use
of so much of the waters of the Rio Mimbres and its
tributaries in and on Ft. Bayard and in and on those
35
portions of the Gila National Forest further withdrawn
from sale or other disposition for the protection of the
water supply of Ft. Bayard as is or may become neces-
sary for the use of the military cemetery on those lands
with priority dates as of the dates the lands were with-
drawn for the military reservation and for water supply
protection of the said reservation.
WHEREFORE, the United States prays
(1) That each and all of the defendants owning lands
or claiming water rights within the watershed of the
Rio Mimbres be required to appear before the court and
set forth fully any claims in and to the use of the waters
of this stream and its tributaries.
(2) That the court determine the rights of each of
the parties in and to the use of the waters of the Rio
Mimbres and its tributaries and enter its decree setting
forth such rights with a date of priority for each right.
(3) That the court determine and decree that the
United States has the rights to divert and use so much
of the water of the Rio Mimbres and its tributaries as is
in and on the National Forest lands within the Rio
Mimbres watershed as is or may become necessary for
the needs and purposes of such National Forest lands and
that such rights be declared to have priority dates for
the respective lands as of the dates they were reserved
for National Forest uses.
(4) That the court determine and decree that the
United States has the rights to divert and use so much
of the water of the Rio Mimbres and its tributaries in
and on that portion of the Fort Bayard Military Reserva-
tion being administered by the Department of Agricul-
ture for forest purposes as is or may become necessary for
the needs and purposes of those lands as forest lands
so long as these needs do not exceed the uses that would
have been made of the waters in and on these lands for
military purposes, had Fort Bayard remained an active
military post and that such rights be declared to have a
priority date of August 21, 1866.
36
(5) That the court determine and decree that the
United States has the rights to divert and use so much
of the waters of the Rio Mimbres in and on Fort Bayard
and in and on those portions of the Gila National Forest
further withdrawn from sale or other disposition for the
protection of the water supply of Fort Bayard as is or
may become necessary for the use of the military ceme-
tery on those lands and that such rights be declared to
have priority dates as of the dates the lands were with-
drawn for the military reservation and/or for water
supply protection of Fort Bayard.
(6) That the court enter its order enjoining all di-
versions and uses of water from the Rio Mimbres and
its tributaries except in accordance with the rights and
priorities as set forth in the Court’s decree.
(7) That the court appoint a water master to admin-
ister the waters of the Rio Mimbres and the respective
rights of all users therefrom in accordance with the
orders and directives of this court.
(8) That the court enter such further orders and
decrees as may be just and proper for an adjudication of
the parties rights to the use of the waters of the Rio
Mimbres and its tributaries.
VICTOR R. ORTEGA
United States Attorney
By: /s/ Mark B. Thompson III
MARK B. THOMPSON III
Assistant United States Attorney
/s/ Donald W. Redd
DONALD W. REDD
Attorney, Department of Justice
Attorneys for Plaintiff in
Intervention
— ee oe ò——ę—ꝓb =
37
[Filed in State District Court Aug. 4, 1971]
NOTICE OF HEARING
TO: ALL COUNSEL OF RECORD
Please take notice that the Honorable Irwin S. Moise,
the Special Master heretofore appointed by the Court
in this matter, has set a pre-trial conference for Septem-
ber 16, 1971, at 9:00 a.m., at the Luna County District
Courthouse, Deming, New Mexico.
Some of the matters to be taken up at the pre-trial
conference are the following:
1. Discussion of procedures for the litigation of mat-
ters by the Special Master.
2. The determination of which Sub-Files have con-
tested issues of fact or law.
3. The setting down for hearing of the contested Sub-
Files that are ready for trial.
4. The clarification of the claims of the United States
of America for the Gila National Forest and the
Fort Bayard Military Reservation.
5. Discussion of the nature and extent of flood water
rights.
s, Peter Thomas White
PAUL L. BLOOM
PETER THOMAS WHITE
Agency Assistant Attorneys General
State Engineer Office
Bataan Memorial Building
Santa Fe, New Mexico 87501
ATTORNEYS FOR PLAINTIFF-IN-INTERVENTION
STATE OF NEW MExico Ex REL. S. E. REYNOLDS
38
[Filed in State District Court Oct. 25, 1972]
PRE-TRIAL ORDER
At a pre-trial conference held at the Court House in
Silver City, New Mexico, on September 26, 1972, pur-
suant to Notice, the following transpired:
(6) Concerning the various claims of water by the
United States, the State Engineer agrees that the United
States has a right to water under the reservation doctrine
to the extent that such right satisfies the purposes for
which the federal lands were withdrawn and to the extent
that waters were unappropriated and available to be so
reserved. However, the following legal questions are to
be resolved by the Court:
(a) In the adjudication of a reserved water right
of the United States must a specific quantity limita-
tion be decreed by the Court?
(b) Does the United States have a right to change
the use of waters previously reserved for the Ft.
Bayard Reservation (military use) to uses incident
to national forests on the remaining 11 sections of
land being administered by the Forest Service?
(c) Was recreation use within uses for which
water could be reserved prior to the Federal Multiple
Use Act?
(d) Were the limits as to uses for which water
could be reserved or withdrawn in national forests
fixed as of the time that the national forest was
created?
(e) If recreation uses were not within the original
purposes of forest use, did reservation for this pur-
pose arise as to forests previously created with the
enactment of the Multiple Use Act?
(7) The United States and the State Engineer will
submit simultaneous Briefs on the questions set forth
— —
39
in (6) above, on or before December 1, 1972, and will
respond to the Briefs of the other on or before January
1, 1973.
(8) The State asserts a question of fact to be present
as to whether or not any unappropriated waters were
available for reservation at the time of reservation or
withdrawal by the United States for forest or other
purposes. This question will have to be tried if no agree-
ment as to the facts can be reached.
(9) A trial date on unresolved issues, both of law and
fact, will be tentatively set for April 2, 1973, at the
Court House at Deming, New Mexico. This is a date
which we will try to meet, subject to unavoidable delays.
Further notice will be given.
/s/ Irwin S. Moise
IRWIN S. MOISE
Special Master
40
[Filed in State District Court Nov. 30, 1972]
BRIEF FOR STATE OF NEW MEXICO
POINT VI
RECREATION IS A PURPOSE OF NATIONAL FOR-
EST USE TO THE EXTENT THAT ITS ENJOY-
MENT PARTAKES OF THE NATURAL CONDI-
TION OF THE FOREST LANDS WHEN WITH-
DRAWN.
An extremely technical argument could be made in
order to establish that recreation was not a valid purpose
for the creation of a national forest until the passage
of the Multiple Use Sustained Yield Act of June 12,
1960. (74 Stat. 215). We find the argument ill-advised
and concede the above stated Point to the extent such
recreation is of a magnitude revealed in traditional and
historic use.
41
[Filed in State District Court Dec. 18, 1972]
PRE-TRIAL MEMORANDUM OF UNITED STATES
C. Recreation Was a Valid Use For Which Water
Could Be Reserved On National Forest Lands Prior To
The Federal Multiple Use Act.
1. The Courts have recognized Recreation as Valid
Forest Purpose.
The question of whether the withdrawal of public
lands for national forest purposes reserved waters in
and on those lands for recreational purposes has already
been answered in the affirmative by the Supreme Court
of the United States. In the case of Arizona v. California,
supra., the Special Master in his report found that the
national forests in the lower Colorado River Basin, in-
cluding the Gila National Forest, were established for
the following purposes:
1) The protection of watersheds and the maintenance
of natural flow of stream below the sheds;
2) Production of timber;
3) Production of forage for domestic animals;
4) Protection and propagation of wildlife;
5) Recreation by the general public. Masters Re-
port, p. 96 (1960).
The Master then noted that water is used on these
national forests for “recreation, domestic purposes, ir-
rigation and stock watering.” (Id.) The report of the
Master was adopted and approved by the Court with
respect to this finding. As noted above, this finding ap-
plies to the same national forest under consideration in
this adjudication—the only difference being that it per-
tained to the lands on the other side of the watershed
divide between the Gila and Mimbres Rivers.
The position of the Supreme Court in Arizona v. Cali-
fornia, supra., with respect to reserved water rights
42
was reaffirmed in 1972, in the case of the United States
v. District Court in and for the County of Eagle, et al.,
401 U.S. 520. In this case, the Court stated:
It is clear from our cases that the United States
often has reserved water rights based on withdrawals
from the public domain. As we said in Arizona v.
California, 373 U.S. 546, the Federal Government
had the authority both before and after a state is
admitted into the union “to reserve waters for the
use and benefit of federally reserved lands.” Id. at
597. The federally reserved lands include any federal
enclave. In Arizona v. California, we were pri-
marily concerned with Indian Reservations. Id. 598-
601. The reservation of waters may be only implied
and their amount will reflect the nature of the fed-
eral enclave. Id. 600-601. (Emphasis added. )
2. A Fair Interpretation of the Basic Statutes In-
cludes Recreation as a Valid Forest Purpose.
In this adjudication, we are concerned primarily with
waters reserved for national forest purposes. The scope
of the forest purposes has been questioned by the State
of New Mexico in that recreation has been challenged as
a valid forest purpose at the time the lands within the
Gila National Forest were reserved for forest purposes.
A review of the history of our national forests, however,
clearly shows that recreation has been a valid purpose
of our national forests from the time they were first
created.
The Act of March 3, 1891, 26 Stat. 1103, authorized
the President of the United States to create national
forests by reserving public lands. We have evidence that
can be introduced at the trial, if desired, that will es-
tablish that even before the forests had been reserved they
had long been used for recreational purposes such as
camping, hunting, and fishing.
The Organic Act of July 24, 1897, 30 Stat. 35, con-
tains the following language:
No public forest reservation shall be established ex-
cept to improve and to protect the forest within the
43
reservation, or for the purpose of securing favorable
conditions of water flows and to furnish a continuous
supply of timber for the use and necessity of citizens
of the United States; but it is not the purpose or
intent of these provisions or of the Act providing
for such reservations, to authorize the inclusion there-
in of lands more valuable for minerals therein or
for agricultural purposes than for forest purposes.
It has been suggested by some individuals that the
language of this provision limits the valid purposes of
the national forests to securing favorable conditions of
water flow and to the production of timber. A careful
reading of this entire provision as a unit, however, is
necessary to grasp the real intent of Congress. It is
noted that, under this statute, forests may be established
(1) “to improve and protect the forest within the reser-
vation,” or (2) “for the purpose of securing favorable
conditions of water flow and to furnish a continuous
supply of timber.” Furthermore, it is apparent from
the balance of the paragraph that the real purpose of this
provision was to insure that lands more valuable for the
minerals therein or for agricultural purposes than for
forest purposes were not included within the forest
reservations.
The next paragraph of this statute reads as follows:
The Secretary of the Interior shall make provisions
for the protection against destruction by fire and
depredations upon the public forests and forest reser-
vations which may have been set aside or which may
be hereafter set aside under the said Act of March
3, 1891, and which may be continued; and ne may
make such rules and regulations and establish such
service as will insure the objects of such reservations,
namely to regulate their occupancy and use and to
preserve the forests thereon from destruction.
This mandate for regulations for the occupancy and
use of the forests indicates that Congress envisioned uses
broader than watershed protection and timber production,
namely, multiple use and utilization of all of the resources
of the national forests.
44
3. The Officials Charged with the Administration of
the National Forests have Consistently Construed the
Statutes Pertaining to National Forests as Authorizing
Recreation as a Valid Forest Purpose.
The Courts have held that great weight should be given
to the interpretation of statutes by those officials charged
with the duty of enforcing such statutes. Udall v. Tall-
man, 380 U.S. 1, 1965, United States v. Southwest Pot-
tash Corp., 352 F.2d 113 (C. A. 10, 1965), cert. den., 383
U.S. 911; Rochester Tel. Corp. v. United States, 307 U.S.
125 (1939). In the case of Udall v. Tallman, supra, the
Court said:
The Secretary’s interpretation may not be the only
one permitted by the language of the orders, but it
is quite clearly a reasonable interpretation; the Court
must, therefore, respect it.
The official records of both the Department of the In-
terior and the Department of Agriculture show that from
the very beginning the statutes with respect to national
forests have been construed as including recreation within
the valid purpose for which national forests were author-
ized.
In 1902, the first comprehensive forest regulations were
published by the General Land Office under the title of
Forest Reserve Manual. On page seven of this manual,
there was provision for the leasing of lands near mineral
springs under the Act of 1899, 30 Stat 908. At page eight
of this manual, under the heading “Travel In and Across
the Reservation” the following provision appeared:
All law abiding people are permitted to travel in
forest reserves for purposes of prospecting, survey-
ing, to go to and from their own lands or claims and
for pleasure and recreation. (Emphasis added.
In 1905, under the provisions of the Act of February
1, 1905, 33 Stat. 628, 16 U.S.C. 472, the responsibility of
caring for and administering the forest reserves was
transferred to the Department of Agriculture. In a letter
dated February 1, 1905, to Gifford Pinchot, the director
45
of the Forest Service, the Secretary of Agriculture di-
rected that questions of policy in the management of the
national forests should be decided from the standpoint of
the “greatest good of the greatest number in the long
run.” This has continued to be the policy of the Depart-
ment of Agriculture in the administration of our national
forests up to the present time. A manual entitled “The
Use of the National Forest Reserves” was published by
the Department of Agriculture in 1905 to govern the ad-
ministration of the national forests. Regulation 42 of this
manual provided that “hotels, stores, mills, summer resi-
dences and similar establishments will be allowed when-
ever the demand is legitimate and consistent with the
best interests of the reservation. (p. 49.) This manual
also directed rangers to “inform all hunters and travelers
of the local game laws and to endeavor to prevent their
violation. (p. 81.) By 1913, the annual report of the For-
est Service to Congress showed 1,507,008 people under the
heading of pleasure seekers had visited the national for-
ests in that year. This report also contained the following
passage:
Recreational use of the Forest is now growing very
rapidly, especially on forests of considerable size.
Hundreds of canyons and lakeshores are now dotted
with camps and cottages built on land, use of which
is obtained through permits of the Forest Service.
This is an important form of use of the Forest Serv-
ice by the public, and it is recognized and facilitated
by adjusting commercial use of the forests, when
necessary, to the situation created by the needs of
the recreation seekers. Examples of such adjustments
are the exclusion of stock from the locality where
they would interfere with such a summer population,
or the prohibition of use of certain canyons for drive-
ways, and provision in timber sales for very light
cutting or not cutting at all, close to lakes and else-
where where it is desirable to preserve the natural
beauty of the location unmarred, for the enjoyment
of the public. (p. 41-42.)
46
The legislative history of the Multiple Use-Sustained
Yield Act, 74 Stat. 215, 16 U.S.C. § 528, is quite revealing
with respect to the purposes and uses of the national for-
ests prior to enactment of that statute. The Department
of Agriculture, in its letter recommending passage of the
Act stated:
The national forests have long been administered
under the policies of multiple use and sustained yield.
The Department does not believe there is any ques-
tion as to its authority to so manage the national
forests, and the recommendation that this draft bill
be enacted should not be so construed.
4. Congress Has Consistently Recognized Recreation
As a Valid Forest Purpose.
In both the Senate and House Reports on the Multiple
Use Act, the following language appears:
On the same day that the administration of the na-
tional forests was given to the Secretary of Agricul-
ture by the Act of February 1, 1905, 16 U.S.C. 472,
Secretary of Agriculture Wilson directed that ques-
tions of policy in their management should be decided
from the standpoint of the “greatest good of the
greatest number in the long run.” Enactment of the
bill would continue this policy. The administration
of national forests has long been under the policy of
the Multiple Use and Sustained Yield. House Report
No. 1551, p. 2; Senate Report No. 1407, p. 3, 86th
Cong. 2d Sess.
In 1899, Congress enacted two measures which recog-
nized recreation as a valid purpose of the national for-
ests. The Act of February 28, 1899, 30 Stat. 908, au-
thorized the Secretary of the Interior “to rent or lease
to responsible persons . . suitable spaces on the ground
near or adjacent to mineral, medicinal, or other springs
in any other forest reserves. . where the public is ac-
customed or desires to frequent for health or pleasure.”
Later that year, Congress amended the forest service
appropriation act to provide for protection of the fish and
47
game resources of the reserves directing its forest agents
to aid in the enforcement of laws in relation to the pro-
tection of fish and game.
Beginning in 1907, the appropriation bills for the forest
service began showing funding “to transport and care for
fish and game supplied to stock the national forests or
the waters therein.” Eg. 34 Stat. 1270. Quite obviously,
such appropriations were for recreational uses.
In 1922, Congress made the first specific appropriation
‘for the construction of sanitary facilities and for fire
prevention measures on public camp grounds within the
national forests.” 45 Stat. 520.
Respectfully submitted,
VicTor R. ORTEGA
United States Attorney
By: /s/ James B. Grant
JAMES B. GRANT
Assistant United States Attorney
/s/ Donald W. Redd
DONALD W. REpp
Attorney, Department of Justice
48
Filed in State District Court Dec. 17, 1973]
TRANSCRIPT OF HEARING
BEFORE SPECIAL MASTER
ON OCTOBER 9, 1973
[3] THE COURT: All right, sir. Mr. Redd, are you
ready to proceed?
MR. REDD: We would like to call Mr. Carlson.
THE COURT: Do you have any other witnesses I can
swear at the same time?
MR. REDD: We have Mr. Norman Ritchey.
(WHEREUPON, witness were duly sworn by the
Court.)
WESLEY CARLSON
Called as a witness herein, after having been first duly
sworn under oath, was questioned and testified as follows:
EXAMINATION
BY MR. REDD:
Q. Mr. Carlson, would you state your name and pres-
ent address and present occupation, please?
A. My name is Wesley Carlson. I’m presently em-
ployed by the United States Forest Service, Washington,
D. C.
Q. And what are your duties in your present assign-
ment, Mr. Carlson?
A. I handle a number of matters. One of these is the
review of and help in developing environmental state-
ments in connection with water resource development
projects which might involve national forest system lands.
Another one of my responsibilities is national adminis-
tration coordination of water rights activities [4] within
the Forest Service.
Q. Now, Mr. Carlson, what is your educational back-
ground?
— —ä——ä—— a aN ͤ ää—äéꝓ — eS
— oe
49
A. I graduated from Colorado State University with
a bachelor’s degree in forestry in 1943, and I followed
that with work on an advanced degree which I did not
complete in watershed management.
Q. And at what school was this?
A. This was at Colorado State.
Q. Now, how long have you worked for the Forest
Service?
A. I have to think a minute. Twenty-seven years.
Q. Then, essentially all of your working life has been
with the Forest Service, is that correct?
A. That’s correct.
Q. Could you review for the Court very briefly what
your various assignments have been in the Forest Service?
A. I was an Assistant District Ranger and District
Forest Ranger at two different districts. I was a Wildlife
Staff Watershed Officer on two national forests. I was
with the Inter-Mountain Forest Range Mountain Station,
which is an arm of the Forest Service in flood control
survey activities. I spent two or three years in our Divi-
sion of Watershed Management in Ogden, Regional Office
there. I was a Coordinator for the Inter-Mountain Region.
And eight years I spent as Forest Supervisor at Challis
National Forest in Idaho. And the last two [5] years, I
have been in our Washington office.
Q. How many of these twenty-seven years that you
have been in the Forest Service have you had some duties
that concerned watershed management and utilization of
water?
A. To a greater or lesser degree, practically all that
entire time.
Q. Now, in your present assignment in Washington,
do you have any responsibility over the inventories of the
water rights in the various national forests?
A. Insofar as national priorities are concerned and
attempting to allocate funds and also coordination of ac-
tivities, we’re trying to use a similar approach through-
out the entire national forest system in completing our
inventory.
THE COURT: Similar to what?
50
THE WITNESS: Well, one region would do it in a
similar manner as the next region.
THE COURT: You mean uniform?
THE WITNESS: Uniform, right.
BY MR. REDD:
Q. Now, have some particular problems been run into
in the inventory of the water uses with the present /fu-
ture?
A. Would you repeat that?
Q. Have you run into any problems with respect to
present and future needs for water in this inventory?
[6] A. Well, we found that it’s very difficult to iden-
tify all the uses, and particularly on the first time around,
it’s like developing any new activities. You find certain
things the first time around; when you take a new look
at it, you find other things, items that you might have
overlooked. Or you might find that in some instances,
your—you have identified more than you need or less
than you need. We found some of those kind of difficul-
ties.
Q. Now, in running these inventories, have you found
that there are some problems in estimating what the
needs will be because of the state of development of our
measuring methods for some of these needs?
A. Well, I think in most of our instances where we
have diverted water, we're able to measure those very
concisely. In the case of water needed in the stream for
various purposes, we're just now in the process of trying
to develop a methodology to measure these, and we're not
too far down the road in getting that methodology organ-
ized. We have worked with various states, various state
agencies, in trying to put together a methodology, as well
as with other federal agencies.
Q. Now, Mr. Carlson, you stated that you have some
supervisory capacities in coordination of the inventories
from the national forests; is this correct?
[7] A. Well, I helped develop national policies to a
degree, and then coordinate how that policy is organized
and operated at regional levels.
"
1
51 /
Q. Now, could you tell us ve
Q. could you ry broadly what
— 4 are in itemizing an inventory in ‘the 3
n * of the Forest Service for water for future need?
1 For future needs? Well, we have taken a very
road approach for future needs. Might use recreation
as an example. About all we have to rely on is the projec-
— the trends of use and activities. And we can es-
mate then, based on the trends that we can identify
28 estimate what the future needs would be; insofar
as livestock grazing is concerned, it’s tied to the capacit
of the land to handle livestock. If there is enough —
1 — — a — * head of livestock, we can
—— I reasonably elose how much water they would
Q. Now, are some of these needs th
flected in this things that Ar Ad
e —— 97 would be more difficult to
5 ell, yes. I think water is needed f i
purposes, for example, and in some instances the —
may have a higher value than most anything else you
could put on that water at a given point. And that’s
an example where it’s difficult to get agreement between
[ * 92 2 to Just exactly how much you need
’ w, these inventories that have been
— = * 1 — of these inventories? n
, ell, we have an inventory, water in
— years, everyplace I have ever been. 4 *
— and incomplete, but we did have one of sorts to
identify within the Forest Service, what our needs reall
were, and what our actual uses were. Then, as —
a on, we recognized a need to also inform other people
— 1— a and requirements are. We have been
8 as t i
vera —— o our estimated uses and needs for
. You say you have notified the
states
— 1 this been done all over the western *
* o, it hasn't. It's been done in those states where
e inventories have been brought up to the point where
we thought it .
at the — it was reasonably elose as we could identify
52
Have you ever considered that your inventory had
reached that stage in the State of New Mexico?
A. No. People in this region, when I inquired as to
where they hadn’t notified the State of New Mexico, they
felt it just had not been perfected adequately. But I
think that perhaps they’re getting much closer now.
THE COURT: Let me ask you, Mr. Carlson, this was
9] done state by state rather than forest by forest or
anything like that?
THE WITNESS: No, sir, it’s done watershed by
watershed. We have a thing we call our PWI, project
work inventory, which is a—well, I won’t go into those
details. But we identify various watersheds, and the in-
ventory is completed by the watershed and then by the
next larger drainage. You can accumulate this informa-
tion for a particular watershed and drainage area. And
then we're trying to accumulate it so that it can also
be identified by state.
BY MR. REDD:
Q. Now, in setting up these watershed inventories
within the national forests with respect to future needs,
has the criteria been to include everything that would
be within the forest purposes for which water could be
used on that watershed?
A. Well, everything is, we reasonably feel, at this
time. We have made no effort to go all out and identify
all the difficulties or e land or this sort of thing that
might be a possib thing in the future, but try to keep
it in a practical vein.
Now, by practical vein, do you mean the things
that the water probably would be used for in actuality?
[10] A. Yes.
Q. And what are some of the things that would con-
trol whether the water would or would not be used?
A. Well, you have a use on the land which requires
water, it probably would be used there. I’m not sure I
fully understand the question.
Q. Well, is construction of structure sometimes neces-
sary for some of these uses?
A. Oh, certainly.
53
Q. And is there any limitation i
ae on the construction of
A. I don’t know of any limitation.
2 N ~~ your budget?
A. Oh, the budget. We have very limited funds with-
in which to operate, and the Forest Service has never
taken on any major water development that I know of.
1 * A a | 1 of the local people ever have any
e development j i
pe es dpe p of projects that might use
A. Quite often. We have coo i
0 ö perated with a numbe
states where small fishing reservoirs have been —
Fishing and other recreational purposes, this sort of
* 3 some impoundments that are needed for
se administrative use, but most of these are pretty
[11] Q. Now, do you have an iliari i
0 y familiarity at all with
7 „ Mg — r printout of the inventory
5 3 , ;
ae within the national forest in
A. I have looked at it, but I’ iain
„
4 REDD: I have no further questions of this
THE COURT: You may cross examine.
MR. BLOOM: Paul Bloom, Special Assi
General for the Plaintiff, State wien — 5
EXAMINATION
BY MR. BLOOM:
Q. Mr. Carlson, first off, I believe you i
some uses made by other people than the 4 meee
itself that complicates this study we're talking about
uses made by lessees or special- use permittees?
ry on — making that statement.
. right. In the course of making i i
you’re talking about, or the ones that — 1
your general supervision in the forests in the United
States, de those inventories routinely include, in the cate-
54
gory of present uses, all those uses now being made by
people acting under special-use permits from the various
national forests?
[12] A. No, I wouldn't include all of those.
Q. Would it include any of those?
A. Conceivably it could, if the water that was being
used by a special-use permittee with a legitimate reserve
use.
Q. And do I understand it, in your judgment of your
job, that’s your decision to make, as far as these in-
ventories go?
A. Well, I wouldn’t say that it is.
Q. Who would decide whether a fellow who had a
special-use permit on a thousand acres of forest land, say
for—for example, for a ski basin operation, ski lift and
slope, and maybe the land rented for overnight facilities
and all the other related recreation facilities of a ski
basin—we will assume this is all happening inside a na-
tional forest under a special-use permit. Now, is that
or is that not treated by the U.S. Forest Service as a
reservation purpose?
A. The Forest Supervisor upon whose national forest
the land lies, he is the one who normally issues the
special-use permit. Now, if it’s a much, much larger
operation, that responsibility would rest with the Re-
gional Forester.
Q. Possibly I’m not following you. Do I understand
you to say each forest supervisor who issues under his
local authority a special-use permit for ski basins has
the [13] implied power to determine whether or not that’s
a use of water by the United States, or use of water
under state law by the lessee? That’s what I am getting
at, is whether that’s counted by the Forest Service, the
water use associated with that ski basin? You don’t
have any national policies on whether such a water use
would be a federal water use or a local water use?
A. Well, it would depend on the circumstances in each
case, I think.
Q. Well, then, I think you’re telling me that there
is no National Forest Service policy as to ski basins, for
instance? It might or might not be counted as a federal
water use?
55
A. That’s possible.
Q. I see. So if I ask you about the one up in Santa
Fe or Taos or some others on partially or entirely on
National Forest Service land, you would have to tell me
to talk to the Forest Supervisor in each case to find out
if this was claimed as federal use or something done
under state law; is that right?
A. I certainly don’t review all of those.
Q. But am I correct that as far as any national
policy goes with the Forest Service, in your judgment,
it would be strictly a local decision of the Forest Super-
visor whether “he complied” under a reservation doc-
trine, or [14] leave it to the leasee to claim?
A. I presume it would become a contested matter, that
it would be a decision for the Court.
Q. No. I type my question, Mr. Carlson, to the state
to which you make inventories before you go into any
course. I understand you’re telling me there is no uni-
form national policy, just a matter that each supervisor
who is in charge of an inventory can decide whether or
not to claim this water use made by a special-use per-
mittee for a ski basin as a federal use or as a local use?
A. No. I think this is spelled out pretty well in the
Forest Service Manual.
Q. What does that say?
A. Some of the uses—there is a number of uses that
are defined and would include such developments. If they
are located on National Forest land, if it’s a recreation
use of the National Forest, and if the water that’s being
used there comes from the National Forest.
Q. All right. Now, we’re getting to what I was origi-
nally asking about. I understand you’re telling me now
that your view is that anything, that you have a legal
right to issue a special-use permit, you have the right to
count as water use for a federal purpose of the forest?
151 Q. All right. Let's take a ski basin. Say, take
the one up at Santa Fe or anywhere in New Mexico. A
man leases, gets a special-use permit for enough acreage
and suitable site, and wanted to start a ski basin opera-
tion. He is going to use a lot of water and so he gets
a permit from your Forest Supervisor, and he drills wells,
56
and he doesn’t comply at all with state law, just believes
he is acting under the authority of the United States
and under his special-use permit. Do you or do you not
have a National Forest Service policy when it comes to
inventorying water rights in the National Forest with
respect to how you treat this man?
A. Well, yes. I think we have a policy.
Q. What is your policy?
A. Well, I think I stated it before, that if it’s a
legitimate National Forest use, if it’s located on the
National Forest, and it’s for a public recreation service,
and the water is to be used on the National Forest, it
comes from the National Forest, it could be claimed under
reservation.
Q. You say it could be? I was following you right
up to that point. When you say it could be, does that
mean you leave the discretion entirely to the Forest
Supervisor who is in charge of the inventory, whether
he will do it, or is there some national criteria or [16]
written policy, instructions, or manual guideline to tell
him whether or not he should claim it, and if so, how he
should measure it?
A. Insofar as the measurement, we don’t have the
techniques spelled out in our water rights activities, no.
Q. Well, I wasn’t just asking how to measure. I’m
still trying to get over the threshold problem. When you
have a forest, you have a special-use permit, you have
a ski basin,—
A. Yes.
Q. —do you have a national policy constructed under
which your basin, your Forest Supervisor, is to claim
that or not claim that, when an inventory is being made
of Forest Service water uses in that watershed? When
I have asked you this before, you told me that if it’s a
lawful purpose like recreation, which you assumed it
is because you gave them a permit that the Forest
Supervisor could do it. I want to know, must he do it,
and under what authority and what guidance you have
given him from Washington of how to handle that?
If there is no such policy, I would appreciate you telling
me that.
57
A. Well, I though I had explained it to the best of
my ability.
Q. Well, all right.
A. Since it is, then he could claim it, if it is legiti-
mate [17] recreation use and legitimate facilities for
public purposes on a National Forest.
THE COURT: Tell me this. Do you have any writ-
ten manual or directory as to claims for water, or how-
ever you want to describe it?
THE WITNESS: Ves, we do.
THE COURT: Wouldn’t that give the answer to the
question he is asking you?
THE WITNESS: I think it would, yes.
THE COURT: Do you have it with you?
THE WITNESS: I’m not sure if I have a copy. I
think I do.
MR. BLOOM: I would be glad to have the witness
consulted and show it to me, if he can find it.
THE COURT: Can you get it quickly?
THE WITNESS: We’re in the process of revising
some of the wording in our manual, and here is our
icy.
THE COURT: What are you referring to?
THE WITNESS: I’m referring to Forest Service
Manual, Title 2500.
BY MR. BLOOM:
Q. Watershed Management?
A. Watershed Management, and under Section 254103,
the policy is spelled out.
[18] . Would you read that into the record, please?
A. “Water necessary for the development, use, and
management.”
Q. Excuse me. Why don’t you start up here?
A. All right. “Objective: The objective—” I have,
“Forest Service is to obtain sufficient quantity of water
in coordinance with legal authority to provide for the
development, use, and management of National Forest
system resources, with due consideration for the needs
of other water users.” Now, you want to read on the
policy?
58
MR. BLOOM: Just a second. Mr. Redd, can we agree
to have this stipulated into the record, this whole page,
so we don’t have to read it? ;
MR. REDD: Stipulate that whole thing if you like.
THE COURT: Let’s keep it down as much as we
can. That page has got your policy in it, Mr. Carlson.
I think it would suffice. Tell me, does it?
THE WITNESS: Yes, it has the policy statement as
it relates to water necessary for development and use.
BY MR. BLOOM:
I'm afraid it doesn’t answer my question, but I
would be delighted to have it in the record.
THE COURT: I wonder if any of the local attor-
neys— [19] do you have a zerox machine handy here?
Just let us have it a minute, Mr. Carlson.
THE WITNESS: Okay. Now, one problem, if we
go to other pages, I have some marginal notations which
have to do with the possible revision of some sections of
this manual, and they would not apply to our current
manual policies.
THE COURT: All right. With that understanding,
let’s have that page, and have it zerozed and give him
the page back.
BY MR. BLOOM:
Q. Mr. Carlson, in my brief reading of this page over
your shoulder, I didn’t see any reference to inventory.
It doesn’t talk about inventories, does it?
A. No, that probably doesn’t. rs
Q. So what you have showed us as policy in your
Forest Service national manual, it’s a general statement
of policies in respect to water. It says you're supposed
to use water in proportion to the water available. You’re
supposed to use water reasonably; that sort of thing,
right?
A. Right. 2 a
Q. Okay. Let's come back to this inventory business
that Mr. Redd asked about on direct examination, which
is of interest to all the parties in this case. You have
59
20] identified, I think you have explained that an in-
ventory of present and future uses of water for the Gila
Forest in the Mimbres Drainage by local forest personnel,
that’s correct, isn’t it?
A. That’s correct.
Q. When was this made?
A. I’m not certain as to the original date, but it was
revised some time this spring, 1973.
Q. Do you know whether the revision has been sup-
plied to any agencies of the State of New Mexico?
A. I’m not aware that it has.
Q. Have—are you aware that the original was sub-
mitted to this Court and to the counsel in this adjudica-
tion so many months ago?
A. Yes.
Q. But you don’t know whether the revision has been
made available to us?
A. No, I don't.
Q. It has not been by you or your office?
A. No, it has not.
Q. Okay. Now, still trying to follow exactly how you
handle the inventories locally, —and incidentally, are these
subject to review in your office nationally before their
finalization or approval, whatever is required?
[211 A. No, sir.
Q. They're simply a product of each local Forest Serv-
ice administrative unit, watershed by watershed?
A. I think they’re assembled and very carefully re-
viewed at the regional level within the region where they
originate.
Q. Okay. I see. All right. Now, coming back to this
problem of special-use permit, you would agree, wouldn’t
you, that in many forests in the western United States,
a very considerable is not a dominant part of the water
actually used in those forests is used by special-use per-
mitees, as apart from use made by uniformed personnel
of the Forest Service itself, isn’t that correct?
A. I don’t know that that’s a fact.
Q. Okay. Then let me go back to fundamentals, and
ask you, what are the largest class of water uses in the
western United States? Then we can take it step by step.
60
A. Well, I would suppose it would be in-stream flows
needed for various purposes.
Q. How do you classify an “in-stream flow” as a use?
A. Fishery studies, aesthetic purposes—I could expand
that.
We will accept your definition of water flowing in
[22] the national water course without any diversions as
use for the purpose of your answer.
A. All right.
Q. Now, I’m more interested in uses made by man-
made diversions, either through wells or dams or ponds
or other man-made works that divert and cause the bene-
ficial use of water. What are the principal categories in
such as these?
A. We divert water for irrigation of pastures, I sup-
pose, would be one of our uses, for domestic purposes.
Q. Now, you say irrigation of pastures. Are you try-
ing to improve on nature, or is this for grazing purposes?
A. No, grazing off our administrative livestock.
Q. You distinguish between that and livestock owned
by leasees?
A. Right.
Q. Is the irrigation of pastures for the grazing by
leasees or permitees for the forest an important class of
use in the National Forest?
A. Not to my knowledge, anywhere.
Q. Could you continue?
A. The other diversions that we have—well, we divert
water for campground sanitation systems.
Q. Those require relatively small diversions, don’t
they?
A. That’s correct.
[23] Q. You’re talking there about water spigots or
small domestic wells and storage tanks and spigots for
sanitary facilities at a campground, aren’t you?
A. In some of the larger campgrounds, we have larger
sanitation systems with the evaporative pumps and this
sort of thing for treatment of the sewage.
. Yes.
A. And there again, the actual consumption is quite
minor.
61
Q. All right.
A. We have some impoundments for —I guess we men-
tioned—livestock use. We have impoundments for fish-
eries and recreation, which would be small lakes. I sup-
pose those are the principal uses that we have.
Q. , All right. I note you have not mentioned, I think,
this list either, water use by/and in association with the
grazing of cattle owned by permitees or leasees, and you
have likewise excluded water associated with recreation
projects not directly constructed and operated by the
Forest Service itself, for instance, the kinds I was refer-
ring to when I spoke of a large ski basin operating under
special-use permit, both those classes of uses are fairly
common with western forests, are they not?
A. That’s true, they are. And water is used for those
purposes.
24] Q. All right. Are such uses customarily shown,
to your knowledge, as Forest Service uses under the res-
ervation doctrine—that is, Federal uses claimed under the
reservation doctrine, and the inventories that have been
made and are now being made in the program of inven-
tory water rights that you have been describing to the
Court?
A. Yes, I think they are.
Q. They are?
A. Yes.
Q. All right. In fact, in the inventories that’s been
submitted to the Court here, a very considerable part of
the annual depletion or consumptive use is actually con-
sisted of use made by grazing, isn’t that true, in associa-
an = grazing operations?
'm not that intimately familiar with the fi ‘
THE COURT: It could very well be. 8
BY MR. BLOOM:
Q. Do you know whether any—when the inventory,
for instance of the Mimbres Drainage of the Gila Forest
talks about stock water, whether it’s talking about stock
owned by the United States Forest Service or stock owned
by leasees?
A. It’s primarily owned by leasees.
62
Q. Right. You don’t know of any administrative stock
of [25] any substantial number being run in the Gila
Forest in the Mimbres Drainage, do you?
A. I don’t know of any.
Q. So if we can take those of all of the stock as be-
longing to leasees, then that brings me back to the ques-
tion of your—of the origin of your national policy of
handling those. Do I understand you correctly now as
telling me that any use made by a leasee who has, in
your judgment, a valid special-use permit, whether it be
a for a ski basin, or whether it be for grazing his own
cattle, that any water use by any depletion in the forest
caused by that permitted use is to be included in these
inventories and is included as a National Forest use?
A. Under the conditions I mentioned previously, yes.
Q. So, I mean, under the conditions in any question
—can you answer yes?
THE COURT: I don’t understand the distinction
you’re making. I understand his answer was yes.
MR. BLOOM: But he said under the conditions of his
previous answer, and I can’t remember which answer he
was talking about.
THE COURT: You can correct me, but I—if I un-
derstand you correctly, you said that if the uses of water
were made on the reservation under a permit, that that
would be counted as a Federal [26] use in your inven-
tory?
THE WITNESS: That would be our policy, if the
water comes from the reservation and is used on the
reservation.
MR. BLOOM: Fine, thank you.
THE WITNESS: And if it’s on proper use.
BY MR. BLOOM:
Q. Do you have any written instructions or guidelines
from the Washington Office of the National Forest Serv-
ice, U.S. Forest Service, stating that, stating the policies
which you have just agreed with me to be the policies of
the Forest Service?
A. The entire guidelines we have are in that manual
that I had in my hand.
—ä—— 34 ꝰ⁊ ́ꝙ— —
63
Q. Now, the page that you identified does not refer
to inventory, does it?
A. No, there is another section.
THE COURT: Could you get that?
BY MR. BLOOM:
Q. If I could, it pointed out to me that on Title 2500,
Watershed Management, it’s duplicated on the second
page, Part 3B, says under Forest Supervisor, it says:
“The Forest Supervisor may be authorized to develop and
maintain the inventory of the National Forest Service
uses.” And then somebody has inserted under that [7]
“foreseeable needs.”
THE COURT: Foreseeable needs. That refers to
changes in process.
MR. BLOOM: Right.
THE COURT: Is that the section you were referring
to, Mr. Carlson?
THE WITNESS: Anything that’s written in there
that hasn’t been typed is not the current policy.
BY MR. BLOOM:
Q. So current policy does not include any reservation
to foreseeable needs in your inventory, does it?
A. Yes, sir, it does.
Q. Where does it? At least, it doesn’t in 3B, under
Forest Supervisor; that’s clear, isn’t it?
A. Under Section 2541.3, Inventory of Water Uses, it
states, “The Forest Supervisor will prepare and maintain
inventory records to show (1) water rights and with-
drawn lands that is valid against the United States; (2)
existing and foreseeable future water requirements of
National forest systems; and (3) a map record keyed to
these inventories.” These records should be brought up
to date annually.
Q. All right. What further instructions are given in
the current form of this watershed management manual
to our Forest Supervisors in respect to telling them
whether [28] they should or should not include in those
inventories water uses made by permitees and leasees?
Do you see any reference to that point in your manual?
64
A. Would you repeat that again, please? .
Q. Be glad to. Mr. Carlson, my question again goes
to some sort of uniform written policy from any language
in that manual instructing Forest Supervisors what
they’re supposed to do with water uses made by leasees
and permitees of the forest in respect to water uses made
by them, by the permitees. Now, you have told, in your
opinion, those things should be included by the Supervisor
in the inventories. I want to know if you told them that
in your manual, and if so, where?
A. There is a section, Reportable and Non-Reportable
Uses, in here with no intent, in this Section 2541.12, that
‘it be entirely all inclusive. But it includes a number of
examples of reportable and non-reportable uses.
THE COURT: Is anything said in there about leasees
or permitees?
THE WITNESS: Not specifically, no.
THE COURT: It’s your view, though, if I understand
you correctly, that those uses would be included under
that direction? ;
THE WITNESS: That’s correct. There is an item
here with this which is National Directions, which [29]
includes developed water for recreation area uses. It
doesn’t distinguish as between an area that we would
have developed or some leasee would have developed.
THE COURT: Would it be of any help to us if we
had that copied?
MR. BLOOM: I would be glad to have that in.
THE COURT: That page?
THE WITNESS: Well, maybe you would want more
than just that page.
BY MR. BLOOM:
Q. How long is 2541?
A. It isn’t really a tremendously long manual. Do you
want to look and see what part of that you would like?
A. I would like to have all of that.
THE COURT: You can have them zeroxed, make
three copies, please.
65
BY MR. BLOOM:
Q. We have established then, as I understand it, that
Section 2500, Watershed Management, 3B, where it re-
fers to inventories of national forest system uses, does
net now refer to foreseeable needs, but the other section,
2541, breaking down the inventory, does, the one you
have just read to us. It includes what you call foreseeable
future water needs of the forest?
[30] A. I think the title is present and foreseeable.
Q. Present, yes. All right. I think that you have
agreed with me earlier, haven’t you, Mr. Carlson, that a
very considerable part of the total depletion cost within
some of the national forests, within the western states,
is in fact caused by these permitees and leasees carrying
on grazing and recreation activities under such permits?
A. Percentagewise, I have never made any analysis,
but there is certainly some consumption there.
Q. Now, if we look at the present inventory that was
made by people under your direction or at least your local
Forest people, it shows something like, what, eighty-some
acre feet of annual present uses? If you have, for in-
stance, just one major recreational use in that watershed
by a permitee or leasee for a recreation project—for in-
stance, assume that a ski basin was feasible there or
something of that kind—that one use of it, if it were a
major use, it could without surprising you very much,
double or triple that annual depletion, couldn’t it?
A. Conceivably could.
Q. Yes. And in fact, you know, don’t you, that there
are in New Mexico a number of national forest locations
where considerable blocks of government land have been
[31] leased to, or permitted for ski basin operations un-
der special-use permits?
A. Ihave heard there are some.
Q. Then you know that they—in the cases of Taos
and Santa Fe, at least, actually involve considerable over-
night accommodations, with restaurants and kitchens and
restrooms and other recreational facilities, don’t you?
Or are you familiar with those?
A. I'm really not.
— „ 4
66
MR REDD: I wonder if I could ask for an offer of
proof to connect this in with the Mimbres Watershed?
THE COURT: I think it would be more important if
we limited it to Mimbres.
BY MR. BLOOM:
Q. All right.
THE COURT: I think we have got the general policy
now. I don’t think it makes any difference what they
do up there.
MR. REDD: We're talking about probability, and it’s
all in the same state.
THE COURT: I don’t know if there is any such
probability. -
BY MR. BLOOM:
Q. Are you familiar with the climate and snowfall
condition [32] and recreation for winter sports in the
Gila Forest?
A. Justin avery general way.
Q. Is it not true that there is generally throughout
the western part of the United States a growing—a
sharply growing public demand for winter sports, recrea-
tion opportunities?
A. I think there is for all kinds of recreation.
Q. In fact, the ski business is a booming business all
over the west, isn’t it?
A. Seems to be.
. And your forests are constantly being approached
by people who desire to get special-use permits for ski
basins and operations, aren’t they?
A. I’m not involved in those things, but I suppose
they are.
Q. Do you know in fact that the Forest Office in
Albuquerque, the Regional Office, is in fact—right now
has underway consideration of certain requests of Elk
and other mountains in the state, where a private in-
dividual or business people have asked for the right to
67
develop new ski basins in New Mexico for winter sport
— and recreational complexes on National Forest
an
A. No, sir, I'm not familiar with this.
Q. Are you familiar with that very large request for
a multi-million-dollar winter sport recreation complex
development in the Sequoyia National Forest which [33]
recently had a great deal of attention through the en-
vironmental impact of that proposed project?
A. I don’t know which one you're referring to.
THE COURT: For our purposes, Mr. Bloom, that we
know that they do grant permits for this purpose and
that they do use water.
MR. BLOOM: I was just trying to get beyond that
into probability, but apparently this isn’t the right wit-
ness to do that with.
BY MR. BLOOM:
Q. Now, that manual you showed me says that an
area where water is scarce, you’re supposed to use it
sparingly. Is that a principle that the Forest Supervisor
under your direction faithfully follows in making these
inventories?
A. Insofar as I know.
Q. All right. How would you translate that policy
directive into the situation of a forest which is in head-
waters of a stream that was already very much over-
appropriated in terms of water uses, if you understand
my question?
A. Let's try that one again.
Q. Okay. Your forest manual says the Forest Super-
visor is supposed to be governed by the policy objective
in areas where water is scarce and in very great demand
[34] locally. It’s supposed to be used sparingly and rea-
sonably. Bearing in mind those other demands for it,
these non-forest demands, how do you translate that into
the appropriation of an inventory in which you are mak-
ing claims for future and foreseeable forest uses?
A. Well, I would translate that to mean that we are
not going to waste water.
68
Q. Is that all?
A. I think that would be the primary consideration.
Q. Is there any instructions from your office to look
for the over-approach when they make these guesses or
estimates as to future requirements?
A. No, sir.
Why isn’t there? It seems to me that would be
implicit in the directive you gave me, that you told them
to use water, where it is scarce, sparingly. As I under-
stand, you’re telling me that the Forest Supervisors are
entitled to ignore the fact of the complete appropriations
or the chronic shortage of water of local streams when
they start reading their crystal balls and guessing what
they’re going to use in the future; is that correct?
A. Well, the authority of the Forest Supervisors is
somewhat broad as it relates to the particular land for
which they have responsibility.
Q. All right.
[85] A. And they are directed to manage those lands
for those various purposes, and in the process of doing
that, there are physical limitations in what they can look
outside for and accomplish in that regard.
Q. I’m not talking about physical limitations, only as
to how much water comes down out of the watershed.
I’m talking about a situation where the forest is in the
headwaters, and there is an entire water-using economy
consisting of towns and industries and individual domestic
wells. You have got a Forest Service manual that tells
your Water Supervisor to use it sparingly where it’s
searce, but I understand you to say they’re entitled to
ignore the appropriations of water on this steam system
when they make their estimate as to how much they
will use in the future?
A. They will use a reasonable amount that is needed
for National Forest purposes.
Q. Looking in isolation, a part on over-appropriated
systems?
A. I don’t know of any of them that are completely
isolated.
Q. If they’re not bound to look to the future, they’re
doing it in isolation as a legal matter?
A. That I don’t know.
Q. You would agree, wouldn’t you, that if the Court
allows a national forest to develop additional uses—or
you [36] just do it on your own, let’s set aside the Court
—you make an inventory and you such-and-such-present
and such-and-such-future needs, then you start developing
your new uses that haven’t been used before, and you’re
at the top of an over-appropriated system, that by exactly
the amount that you increase you have decreased the
supply? I mean, that is just a matter of physics?
A. Hydrologically, it may or may not be correct.
THE COURT: Due to shortening your examination,
looking at the second paragraph, 2541.14, it says, “In
drainage where water has been completely appropriated
under state law, subsequent to the reservation date, use
of water for National Forest system purposes will be
expanded on a more careful evaluation of all water uses
and needs to fully justify such expansion. Non-National
Forest use of water has been established under state law.
The management and benefits of forest uses and activities
depend upon the particular water supply,” and so forth.
Is that what you were getting at?
MR. BLOOM: Yes, sir. I believe that covers the point.
If perhaps the witness hadn’t understood my question, he
could perhaps have called my attention to that, but that
does go to the point [37] I was asking about.
THE COURT: If it would help the witness, there is
a copy of 2541.
BY MR. BLOOM:
Q. Then, if I understand the provisions which Judge
Moise has just read in 2541.14, it is a matter of policy
that the Forest Service is reluctant to, in the opinion of
the National Forest; is that correct?
A. Weare reluctant to do that, yes.
Q. All right. I assume that’s for the reasons I men-
tioned, that it has a direct economic impact on those
people, doesn’t it?
A. Normally it does.
3
70
Q. Yes. Do you know whether the Mimbres Stream
System is a fully-appropriated or over-appropriated
stream system?
A. No, I’m not aware of that.
. Why did the Forest Supervisor revise the inventory
for the Mimbres Watershed of Gila National Forest?
A. It’s our policy that the inventory be reviewed an-
nually and updated where any errors, corrections or
changes might have been discovered. st
Q. In other words, you have an inventory which in-
cludes a component called future uses, and then as each
year of that future becomes past, it is revised, your
inventory, [38] and checked on to see whether you have
called the shots correctly?
A. That might be part of it, or we may have over-
looked a diverted use, or we may have abandoned a
diverted use which is then removed from the inventory,
whichever kind of correction is needed.
THE COURT: Or you may have developed some new
ntial use?
THE WITNESS: Possibly.
BY MR. BLOOM:
Q. For how long, Mr. Carlson, if you have, have the
National Forest lands of the western United States been
used extensively for ski basin operations?
A. Well, are you talking strictly now about recreation-
type skiing? pag 3
Q. With associated lodging facilities, sir, yes, sir.
A. I really don’t know too much about it, but I do
know that there were some developed ski areas in Colo-
rado in the thirties, probably fairly early in the 1930’s.
Q. In National Forest lands?
A. In National Forest lands, and probably before that.
I’m sure there were ski jumps there that were developed
in places of rather a minor beginning. me
Q. Well, the larger national forest ski basin facilities
have principally gone in since the Second World War,
39] haven't they?
A. I’m sure they have been materially expanded dur-
ing that period.
71
Q. Are you then able to tell us today that you are—
you or the Forest Service—able at this time to anticipate
with certainty all potential recreational uses of water on
the National Forests?
A. No, sir.
Q. In fact, it is conceivable, is it not, that just this
one whole class of major water-using facilities for which
ski basins were developed in the thirties, forties, and
fifties are new and equally large and unforeseeable? Now,
unforeseeable recreational use may develop in the eighties
or nineties of the century?
A. There have been all kinds of recreational develop-
ments, such as the ski-mobiles and this sort of thing that
have come along, snow-mobiles, lots of people enjoy them
at the National Forests, where it’s reasonable to do so.
I think through the years we find all kinds of new things
to do with the American public.
. Yes.
THE COURT: But that’s what you are talking about,
possible long-term leases for development of a recrea-
tional subdivision—
THE WITNESS: Are you talking about, say, [40]
summer-home-type things?
THE COURT: Yes.
THE WITNESS: No, I think we're just about out of
that business on National Forest lands. As I understand
our current program, we're not getting into developing
any new ones of those.
THE COURT: Or permitting it to be done?
THE WITNESS: Only on a very minor basis where
there may have been something already in the develop-
mental stage in the past.
BY MR. BLOOM:
Q. Now, Congress could change your policy on that,
couldn’t they? |
A. That’s possible.
The population is steadily growing in this country,
and the demand for summer homes in high country will
no doubt continue to grow in this century, won’t it?
72
A. It's true, but in a number of places where these
things have grown and expanded and almost got out of
hand, it's not a—in some of those places, those lands have
been deeded over as town sites or gone out of the reserva-
tion. They're not National Forest lands anymore.
Q. Are you aware, Mr. Carlson, that in certain forests
in the Pacific North Drainage areas, it is accepted, at
least experimentally accepted as management practice,
41] to irrigate native timbers?
A. I have heard that some companies are doing this.
. Are these companies acting under leases or permits
from the United States Forest Service?
A. Not to my knowledge.
Q. You’re not aware that this practice is being done
in forest lands?
A. Well, it’s done on forest lands, but not national, not
to my knowledge. Now, there are some exceptions to that.
We do irrigate our nurseries where we grow young trees
for planting, and we do have some seed orchards which
are primarily for seed production, which are in the nature
of timber stands. But these are rather small areas, and
occasionally we do practice irrigation on some of those.
Q. Logging is one of the lawful purposes of the Gila
Forest and Mimbres Drainage, isn’t it?
A. Right.
Q. And if sometime in the future the policy of Forest
Service is such as to allow, and assume further that the
economics of the lumber industry was such as to encourage
the irrigation of natural timber to enhance growth and
commercial profits in logging operations, that’s a theoreti-
cal potential for water use in the Mimbres Drainage,
isn’t it?
[42] A. I suppose it could be; I don’t know.
Q. And as you told me, that technique is being used
in the Pacific Northwest on timber companies?
A. On private timber land.
Q. Now, isn’t it essentially your job and that of the
Forest Supervisor to make these inventories to plan the
wise, long-term use of Forest Service property interests in
waters and public waters?
A. That’s part of the job.
73
Q. Isn’t it easier for you and the Forest Supervisor
to have this job of administering and conserving the
publicly-owned properties that you know what you own?
A. I’m not sure I understand that question.
Q. Well, if your job is to conserve and administer to
the public, wouldn’t you agree with me that it makes your
job easier and more certain if you know exactly what it is
that you own and that you’re supposed to be conserving?
A. We, of course, are approaching that question
through our inventories, which are continually updated.
Q. Wouldn’t it necessarily make your job easier and
the Forest Supervisor’s job easier if we could waive the
foundation, and in every watershed in the country where
you have responsibilities, wouldn’t that take a lot of the
uncertainty and confusion out of your job?
[43] A. I don’t see that it would.
Q. You wouldn’t then have to worry about the effects
you were having on other people and whether you were
using too much or too little? You would known exactly
what your property was and exactly what your neighbor’s
property was, wouldn’t you?
A. We would know that.
Q. It would add certainty to your operation and clar-
ity, at least?
A. It would add certainty; I suppose it would.
Q. Yes. The only thing it would do is keep you from
going above that limit. After that, it would only be a
disadvantage?
A. It would do that.
Q. Yes.
MR. BLOOM: I have no other questions.
EXAMINATION
BY MR. REDD:
Q. If you had an adjudication and it cut off certain
“= 1 rights, would that help your administration?
o.
Q. Would an adjudication make any more rain fall on
the forests?
A. Not that I know of, no, sir.
74
[44] Q. Mr. Carlson, you mentioned earlier that certain
inventories had been supplied to some of the other states
and were a little more advanced?
A. Yes.
Q. And when these were supplied to them, was any
forwarding letter, stating what the purpose of this inven-
tory was?
A. Yes.
. Do you have copies of any of those with you?
A. I did have them here, but I must have left them on
the table.
Q. I would like to have these marked as exhibits. This
is a letter notifying the State of Washington as to send-
ing a copy to the State of Washington. This is for the
State of Wyoming and this is for the State of Colorado.
MR. BLOOM: Could Mr. Redd tell us what the rele-
vance of the letters written would be?
MR. REDD: Yes. I would be very happy to tell you.
I want to show by these that these were not intended as
limitations on the water rights, that they were not in-
tended to be a final inventory, but the purpose of these
was to advise the state of what the best estimate was of
the amount of water that would probably be used in the
future, so that they could use these for planning purposes.
MR. BLOOM: Wouldn’t the best evidence rule cover
[45] the situation, that it seems to me that the document
which isn’t yet in evidence ought to speak for itself?
THE COURT: Let's not argue. My only desire would
be to keep out any surplus stuff.
MR. REDD: Yes, sir, Your Honor. Just the letter in
each case is all I desire to put in. The other is there if
they want to examine it, but the letter in each case is all
that we really want.
THE COURT: I see here, for example, on this address
to Denver, Colorado, August Ist of 73, June 18, 69;
August Ist, 73. All right. Have them marked. Mark
these, Mr. Reporter.
BY MR. REDD:
Q. Mr. Carlson, I hand to you a copy of what has
been marked as U.S. Exhibit 1 and ask you to identify it?
75
A. This is a letter that was written by the Regional
Foresters in the northern region of the United States
Forest Service, notifying the State Water Engineer in
the State of Washington as to the water uses requirements
and rights inventory of the U.S. Forest Service in the
Northern Region within the State of Washington.
Q. Now, I show you what has been marked as United
States Exhibit 2, and ask you to identify it?
A. Exhibit 2 is comprised of three separate letters
[46] written to Mr. Floyd Bishop, State Engineer for the
State of Wyoming, notification of current and future,
under the reservation principal on National Forests in
Wyoming. The first letter was dated August 8, 1969.
The second letter was an update, which is dated May 19,
1970. And the third letter is a future update of the
original inventory, which is dated August 1, 1973.
Q. Now, Mr. Carlson, I show you what has been
marked as U.S. Exhibit Number 3 for identification.
A. Number 3 is essentially the same as Number 2,
except that it’s the notification to the State Engineer for
the State of Colorado, and it is also three separate letters,
dated June 18, 1969, an update of May 19, 1970, and a
further update of August 1, 1973.
Q. Now, Mr. Carlson, is the purpose for these inven-
tories stated in that letter?
A. Yes, sir.
Q. And could you summarize for the Court what is
said with respect to the purpose of these inventories?
A. I could read that. The letter outlines the type of
matter—or material that is being furnished to the State
Engineer, that it is a notification of current and future
contemplated water uses under the reservation principle.
It explains a little bit about the print-out sheets which
were included, tells about the numbering [47] system.
And there is a paragraph here to enable you to see at a
glance the existing and foreseeable uses of both surface
and underground waters as we see them at this time. A
summary has been attached, so there is also a summary
of what the uses are as would see them now or at the time
the letter was written.
76
Q. Now, is anything stated in these letters with re-
spect to the intent, as to quantity in our rights, as to
setting a limit upon our legal rights? By ourselves, I
mean the Forest Service of the United States, rights as to
the use of water?
A. All of these letters show that it’s a notice in the
interest of the quantity. It’s not intended to limit the
quantity.
MR. REDD: I have no other questions.
THE COURT: Do you want these admitted?
MR. REDD: Ves, sir.
THE COURT: Do you object?
MR. BLOOM: We object. He didn’t write them, and
in the second place, they are irrelevant because they are
to officers of other states involving other stream systems
not within this suit. And furthermore, Mr. Redd has
already told us that they aren’t in respect to the Mimbres,
that they give notice to the state officials. So since [48]
what was done here is not done in New Mexico, I don’t
see the relevancy.
THE COURT: They will be admitted for what they
are worth. You can develop what wasn’t done here.
EXAMINATION
BY MR. BLOOM:
Q. Do you understand correctly, from either your
earlier testimony or Mr. Redd’s statement, that the com-
parable letter to the two has not been prepared and sent
to the State Engineer of New Mexico?
A. That’s correct.
MR. REDD: I can perhaps at this time—perhaps at
this time it would be desirable to remind you and Mr.
Bloom that a letter was sent with the inventory to the
State of New Mexico, which does contain very similar
language to this.
THE COURT: Well, I have a copy dated July 21,
1972.
MR. REDD: Yes, sir, Your Honor.
77
THE COURT: I am wondering if that is a record in
this case?
MR. BLOOM: No, Your Honor. As far as I know, it’s
not.
MR. REDD: If not, perhaps we should have it ad-
mitted as evidence at this time.
THE COURT: I think perhaps you should.
[49] MR. BLOOM: How about if you withdraw the
other three? It seems to me if we're going to follow
relevance, if a letter has been addressed to the New
Mexico Water Officials—I gather in this case you're talk-
ing about the letter addressed to me? I’m not a water
official, but for the purpose of this case, it would seem to
me that that’s the only one of any relevance at all.
THE COURT: The others don’t hurt anything and I
don’t know how the language compares because I haven’t
compared it, but it occurs to me that—I don’t know how
we’re going to get it in the record if we don’t have it
copied. This is a rather voluminous deal, and as I say,
I’m anxious to keep the record down as much as possible.
But it seems to me that—
MR. BLOOM: There are a lot of copies around. You’re
talking about the whole inventory?
THE COURT: I’m talking about the printout.
MR. REDD: Your Honor, all I was suggesting that
be admitted at this time was just the forwarding letter,
since this is—
THE COURT: You may offer it. Have it marked and
you may offer it.
MR. REDD: At this time, Your Honor, I offer what
50] has been marked as U.S. Exhibit 4, which is a letter
dated July 21, 1972, to Mr. Bloom, Mimbres Valley Irri-
gation Company versus Tony Salopek, No. 6326, and
signed by me on behalf of the Assistant Attorney Gen-
eral for the Land and Natural Resources Division, for-
warding certain papers to Mr. Bloom. This is offered.
THE COURT: Any objection to that?
MR. BLOOM: I have an awkward situation. If it’s
offered, it’s unsworn testimony, and Mr. Redd is here and
can take the stand and take the oath and give that testi-
mony. If it’s not offered for the truth of the matter
asserted, I don’t understand what the relevancy is.
78
THE COURT: It will be admitted for what it’s worth.
And I take it the last paragraph is comparable to the
language of the others? The first part of it is the other
thing?
MR. BLOOM: The letter which you have just identi-
fied, Mr. Carlson, for Mr. Redd was a cover letter with an
attachment?
THE COURT: I don’t know that Mr. Carlson has
ever seen it. There it is.
THE WITNESS: I didn’t see this one.
[51] BY MR. BLOOM:
Q. With a bundle of documents consisting of a com-
puter printout sheet and other material composing inven-
tories for the Mimbres Drainage of the Mimbres Water-
shed of the Gila Forest, does it not?
THE COURT: The first part—it’s just the last para-
graph, I think.
BY MR. BLOOM:
Q. Yes. There are a group of copies of withdrawal
orders that are not—
A. Right.
Q. You have a bunch of printouts, don’t you?
A. Right.
Q. Which are Forest Service printouts? Take your
time and examine them.
A. Might take quite awhile.
Q. I don’t want you to study them intently, Mr.
Carlson. I just want you to identify them as National
Forest computer printouts constituting water right claims
for the Gila Forest and Mimbres Drainage; can you so
identify them?
A. I couldn't, because I’m not familiar with all the
numbers, but I assume that’s what it is. Watershed
025—
A. It lists current foreseeable national water use,
doesn’t [52] it?
A. Right. I presume that’s correct.
79
THE COURT: Could we put it this way, Mr. Carlson?
Is that the form of the inventories as they come out of
the computers?
THE WITNESS: This is the general form, and it
varies in different states, because the different states
wanted it in a little different form, and we have tried to
work with the state in developing it.
THE COURT: Let me ask you this in connection with
these Exhibits 1 through 3, with the Washington, Wyo-
ming and Colorado letters. Was there a printout such
as this?
THE WITNESS: Yes, sir. It was a large printout.
THE COURT: Plus a summary?
THE WITNESS: Plus a summary.
BY MR. BLOOM:
Q. You have identified this—you can identify that as
being for the Mimbres Drainage?
A. I’m not that familiar with the particular number-
ing on it.
Q. All right. You said those other three that Mr. Redd
has introduced took the form of cooperative efforts with
the state officials; is that correct? They were [53] pre-
pared with State water officials; is that correct?
A. Yes.
Q. Yes. Has the Forest Service in the State of New
Mexico such a cooperative program underway with the
State water officials?
A. In my inquiries with our Regional Officer person-
nel, they haven’t informed me that they have made con-
tact with the State of New Mexico.
Q. But is there such a cooperative program underway?
A. Yes.
Q. Has the Forest Service ever sent, to your knowl-
edge, such a letter that you have identified to the State
water officials of those three states, to the State Engi-
neers of New Mexico?
A. Not to my knowledge.
Q. In fact, are you aware whether the inventory which
was handed you in respect to the Gila National Forest
enn
was made, at least in part, in response to the filing of
this lawsuit, or at least submitted by your attorney to
myself as attorney for the State of New Mexico, in con-
nection with this pending lawsuit and quite apart from
any cooperative efforts you may have in being with the
State Engineers?
A. I had heard that, yes.
Q. All right. So this one differs somewhat from those
other [54] three, that it is not the product of a coopera-
tive state/federal effort, something that was turned over
to an attorney in connection with the pending lawsuit to
adjudicate water rights?
A. I don't think the inventory differs a bit.
Q. I mean the submission differs?
A. That might be.
Q. Now, let’s look into what exactly the inventory is.
These letters you have identified at Mr. Redd’s request,
including the letter from Mr. Redd to myself, all use the
phrase essentially that the inventory represents existing
and foreseeable consumptive uses of the fourth service on
land reserve from the public domain. Those are correct
statements, are they not? I’m reading now from the one
sent to the Washington State Department of Water
Resources?
A. Yes, those are correct statements.
Q. That’s a correct statement? You had told me
earlier, hadn’t you, that you, your office, and the Forest
Supervisors, include in this classification of Forest Service
uses for forest land uses made not only by Forest Service
personnel themselves and by the public—general public
using the forest land, but also by permitees and leasees
of Forest Service land?
A: In some instances.
[55] Q. Well, now, it—you are including both your
own uses, public uses, and permitee uses, and you're in-
cluding, as you say here, existing and foreseeable uses.
What category of possible uses is omitted from these
inventories?
A. I don’t know at this point.
Q. In other words, when the inventory was made, each
of these inventories—I am talking particularly of the one
81
for the Gila Forest—it was intended to be a full, compre-
hensive survey of present—that is, existing, and all fore-
seeable Forest Service uses which would be claimed by the
United States Forest Service, both for its own use, its
own administrative operation, uses by the general public
of the forest land, and uses by permitees and leasees?
Both for the present and the future? That’s correct, isn’t?
A. Mr. Bloom, I don’t like to belabor a point, but
there is one point that does bother me, because there
are—we do issue special-use permits, which involve peo-
ple who carry water, for example, off the national forest.
And in our permits, we do not claim to give them any
right to the water, nor do we claim the water itself.
Q. You’re talking there about, for instance, where a
community ditch or private irrigation heads on forest, but
it’s used by non-forest people?
[56] A. Right.
Q. When I talk about permitees and leasees, I’m talk-
= “= people who are using water on forest lands?
Les.
Q. For National Forest purposes, such as recreation,
et cetera. All right.
THE COURT: Well, I don’t know if that’s a National
Forest purpose or not.
THE WITNESS: Les.
BY MR. BLOOM:
Q. As a matter of fact, in this inventory which I’m
going to offer in evidence, a very considerable portion of
the claim is for stock water purposes?
THE COURT: By permitees?
MR. BLOOM: Yes. The witness has already told me
there is no administrative stock raised in the forest.
f THE COURT: My only question about your question
is that I don’t think you should expect the witness to
alter the meaning of the last paragraph of Mr. Redd’s
letter to you.
MR. BLOOM: I don’t want him to alter it. I just
want to find out what the earlier paragraph means.
82
THE COURT: He says as to future users. It’s not to
be construed as a claim of the United States, nor [57] is
it—that it is the current estimate and subject to revision.
MR. BLOOM: Yes, I understand. And the witness
told me earlier on cross examination that, as I recall,
Your Honor, these are subject to constant revision and
year by year or every few years.
THE COURT: The form of your question would have
permitted answers that would have been contrary to that.
MR. BLOOM: I would like to withdraw that question.
BY MR. BLOOM:
Q. I’m not asking you to give any legal opinion on
what the purpose or the effect of that inventory is, just
asking you if, as a matter of fact, when it’s made, the
people who make it are required to and do, to the best of
their ability, consistent with federal law, and your man-
ual of watershed management, truthfully and comprehen-
sively set down every water use they can fit within those
criterias, whether they’re made or to be made by the
Forest Service itself, by it leasee or permitee or by the
general public using the forest land, including both those
then existing and those foreseeable?
A. I certainly hope so.
Q. Yes. That’s the purpose of it?
A. Right.
[58] Q. Right. So the only defect—leaving aside my
legal effect, as a factual matter, the only thing that might
be omitted is that your people might have failed to think
of something, either to find one that is presently existing
that should have been included or to think up one that
five years later or ten years later or twenty years later
you would discover somebody wanted to use?
A. Those would be the primary omissions.
Q. Okay. As far as you know, the inventory that I
have shown you, the printout for the Gila National
Forest which I submitted to you, includes the Mimbres
Watershed, as far as you know; that is made on the same
basis, isn’t it?
A. As far as I know.
83
_ Q. You don’t know whether it includes any of these
in-stream fishery promulgations and aesthetic purposes,
do you?
A. I’m not positive on that point.
Q. I would move at this time the admission of the in-
ventory.
THE COURT: You'd better have it marked.
MR. BLOOM: Yes, sir. I’m sorry, I thought we had
had it marked earlier. I believe the witness has identified
it as the Forest Service Water Quantity Report for the
Gila National Forest. I offer it in evidence at this time.
591 THE COURT: Any objection, Mr. Redd?
MR. REDD: No.
THE COURT: It will be admitted.
MR. BLOOM: I have no further questions.
THE COURT: Do you have some further questions?
MR. REDD: No further questions.
(WHEREUPON, State’s Exhibits A and B were ad-
mitted into the record. )
(WHEREUPON, a five-minute recess was held.)
THE COURT: Your next witness, Mr. Redd?
MR. REDD: Mr. Norman Ritchey.
NORMAN RITCHEY
Called as a witness herein, after having been first duly
sworn under oath, was questioned and testified as follows:
EXAMINATION
BY MR. REDD:
Q. Would you please state your name, address, and
present occupation and employment?
A. I’m Norman Ritchey. I’m working for the Gila
National Forest in Silver City. I’m in charge of the Soil
and Water Management Program on the Forest directly
under the Forest Supervisor.
Q. And how long have you worked in this present job?
A. I have been on the Gila in that particular job for
[60] three years now.
84
Q. Could you relate your educational background?
A. I have a bachelor’s degree in Forest Management
from the University of Idaho in 1961. I have a master’s
degree in Watershed Management from the Colorado
State University in 1964. I have advanced work in
Hydrology at Arizona State University, but no degree in it.
Q. Now, how many years have you worked in the
preparation of inventories of water needs, present and
future water needs?
A. Since 1968. I began this work on the Lincoln
National Forest.
Q. Now, did you have any responsibility in the prep-
aration of the computer printouts of the inventory of
present and future water needs in the Gila National
Forest?
A. Yes, this was my responsibility.
. And when did you first begin this work?
A. In late 1970.
Q. Now, could you relate how this inventory was
prepared?
A. This inventory, we started off with a form which
was eventually used by keypunch operators for the fillout
in filling this in. We inventoried to the best of our abili-
ties the present uses, and we tried to estimate foreseeable
uses.
. And what did you base your estimate on for the
foreseeable [61] uses?
A. Our best guess.
Q. Now, in making your best guess as to future uses,
were you attempting to estimate what the uses would
actually be, or what was the most that cowld conceivably
be used in the exercise of valid forest purposes?
A. We fell short of that second objective. We wound
up with a short-range foreseeable. We tried in a revision
to make a long-range, but we cannot predict the future
that close. This thing became so dynamic in the few years
that I was working on it that it changed constantly.
. Now, the printout that was submitted to the Court,
did this include the entire Gila Forest?
A. I haven't seen the printout. It was supplied
THE COURT: I think the Reporter has it.
85
THE WITNESS: This printout that I have in my
hand here is for the Mimbres Watershed only. It does
not include the whole Gila Forest.
BY MR. REDD:
Q. This is the Mimbres Watershed only?
A. That’s correct. This Mimbres Watershed is coded
Number 25 in the start of this and the middle and the
finish is Number 25.
Q. And there are no water uses inventoried in that
that are [62] not part of the Mimbres Watershed; is that
your testimony?
A. Not from my quick scanning here.
Q. Now, you state that there had been some updating
made since that computer printout was originally made, is
that correct?
A. That is true.
Q. And what was the nature of these changes that
were made at that time?
A. Well, as we learned more and as we denoted errors
in my original wor! —and there were a great number of
them—
THE COURT: What would the nature of the errors
be, omissions?
THE WITNESS: Omissions.
THE COURT: Omissions of yours that you weren’t
aware of?
THE WITNESS: That’s true. Mostly that and addi-
tional uses which we were not aware of at the time we
“om the inventories, that the additional uses would be
made.
THE COURT: You mean for future uses?
THE WITNESS: Both future and current. For ex-
ample, a number of stock watering facilities were built.
THE COURT: That you hadn’t been aware of?
[63] THE WITNESS: That's true.
BY MR. REDD:
Q. Now, you have mentioned stock watering here. In
making your estimates, do you feel that the inventories
86
accurately reflect the future development that might be
made with respect to stock watering?
A. No, I don't think so.
And could you explain why this does not?
A. Well, for one thing, the—how much use is made
out of a stock watering facility is nearly impossible to
estimate. Again, our limit is our best guess.
Q. Why is it impossible to estimate this?
A. Well, a variable number of stock would use any
one facility. It might be that one of the greatest use of
stock watering facility is by wildlife, a tremendous use
that cannot be inventoried. Another thing, the variable
water levels that occur in a stock tank, and that greatly
affects the evaporation rate from a stock tank. There are
many more variables.
THE COURT: How big are these stock tanks?
THE WITNESS: They again vary in size from a
tenth of a surface acre to some of them over half a sur-
face acre. They almost—none of them are much over one
or two acres in capacity.
[64] BY MR. REDD:
Q. Now, in speaking of stock tanks, do you mean a
metal or masonry tank?
A. In inventory, a stock tank was an earth structure.
Q. An earth structure?
A. Right.
Q. And these are small, what would be known as
check dams or ponds?
A. Small ponds.
Yes. Now, does one of the variables that you
would have a problem with in estimating future needs for
stock watering, the number of installations for watering,
the number of watering places that would be on the for-
est land?
A. Would you rephrase that?
Q. Well, now, at the present time, you have how many
stock watering points or watering holes on the Mimbres
Watershed in the forest?
A. I don’t have the tally figure on that. The earth
stock tanks, I recall, are about a hundred of them that are
87
there presently. There are additional developments, such
as springs, rock dams, which we call artificial springs.
And water catchments and wells and this sort of thing,
so there is several hundred at least.
Q. Are there particular problems that arise if you do
not [65] have sufficient watering points?
A. There certainly are. With the present number of
stock, the only way they can utilize an allotment is to be
well distributed over the allotment, and watering is the
only way we can do this.
Q. What are the problems that arise if you don’t have
proper distribution?
A. The land is ruined through erosion. The flood run-
off is greatly increased.
Q. In other words, the cattle congregate around the
existing—
A. Right. We would have very poor storage of the
land if we allowed this to continue.
Q. Then it would be desirable to have more stock
watering points?
A. It's absolutely essential.
Q. And that would distribute the grazing more evenly?
A. That’s true.
om What are other advantages that would come from
is
A. Well, it would help wildlife quite a bit. This in
turn would help a very important aspect of recreation on
the forest, and this is our hunting.
Q. Has there been an erosion problem with the Mim-
bres Watershed from the distribution of the stock water-
ing points?
[66] A. This is one of our chief problems.
Q. What are the things that limit the number of stock
watering points that are installed?
A. The practicality or potential for developing good
water. We prefer having springs all over, but we don’t,
so we have to go to other alternatives. One of these is a
stock tank, for example.
Q. Is water piped sometimes from one area to another?
A. Yes, it is.
Q. Do these things cost money?
A. They certainly do.
88
Q. Where does this money come from to develop these?
A. Appropriations through Congress. ;
Q. Do the appropriations you receive have a bearing
on the amount of stock watering points you put in?
A. They certainly do. They have limited this thing
greatly. 9
Q. Now, in making your estimation of the amount of
water for stock watering, did you take into effect—did
you take into consideration all of the possible points that
could be installed, considering prudent range manage-
ment?
A. We don’t know where these points are. You have
to go through a range analysis and a great deal of plan-
ning. There are no good range water development rec-
ords available.
[67] Q. Then at the present time, would you say that
this inventory is a practical and accurate prediction of
the future needs for stock watering purposes on the
Mimbres portion of the Gila Forest?
A. No, itis a primary estimate only.
Q. Now, I think another of the things that are—what
are some of the other things that are shown for water in
the Mimbres Watershed of the forest?
A. There are a variety of things. The National For-
est, domestic water for its administrative sites and water
for its horse pastures. There is a recreation development
plan which needs to be revised. It is preliminary, but we
did the best we could in estimating the future camp-
ground water needs.
Q. You mentioned wildlife. Are there any inventory
included in this printout for future needs for water, ex-
clusively for wildlife as opposed to livestock.
A. This is one of our chief omissions in this. We have
got a lot more work to do here and it’s going to take
quite some time to get this together, wildlife geologists,
and myself, others who can help us on this.
. What would be the difference in these watering
points from those that are just for livestock?
A. Wildlife watering on the Mimbres would be up in
the high rocky country. You don’t have much livestock
[68] getting up in there. And yet this is literally the last
refuge for our deer and elk and smaller game. And I
think we can include fisheries in this. These fish are a
rare and endangered species. The Gila trout depend upon
stable stream flow and water and so on.
Q. Is that Gila trout which you mentioned as being a
rare and endangered species, is it found within the water-
shed of the Gila Forest?
A. Yes, sir, it is.
Q. Any other part of the country?
A. Just within the Gila Forest, to the best of our
knowledge.
Q. Is there any particular place that this Gila trout is
found?
A. In the upper MacKnight Creek, which is a tribu-
tary of the Mimbres River.
Q. Now, was a figure shown in this inventory for
future needs for the Gila trout?
A. There was, but the figure is too small, as we re-
cently found out in talking with our fisheries.
Q. What was this figure based on at the time, if you
know?
A. It was the minimum stream flow that would be
needed in order to develop fish stream improvement
structures. In other words, the pools which the fish can
survive in.
Q. Do you know at the present time what amount of
water is [69] needed for the protection and the promulga-
tion of Gila trout in the MacKnight Creek area?
A. No, it’s going to take additional time to survey this.
4 And are these studies being made at the present
time
A. No, we plan to in the future.
Q. What’s the limitations on making these studies?
A. I don’t quite get the meaning of the question.
Q. Well, you stated that it was necessary to make
further studies, and you stated that these studies were not
being made at this time. Plans, I should say. Why not?
A. Limited manpower.
Q. Limited manpower?
A. Just myself and one wildlife biologist, who is
brand-new in the forest.
90
Q. Now, is fishing for the public permitted in the area
where the Gila trout is found?
A. That is closed to fishing now.
Q. That’s because of the Gila trout being a rare and
endangered species?
A. That’s true.
Are there other streams that are live streams
within the Mimbres Watershed that are open to the pub-
lic for fishing?
A. The upper Mimbres River—when I say “upper,”
because the—in normal years, the Mimbres is dry for a
stretch [70] through the Gila National Forest, but the
upper watershed has a fishery potential in it. Another
place that is small, but gets some fishers is Iron Creek,
which is a tributary of Gallinas Creek and tributary of
the Mimbres River. And that is all we have. ;
Q. Are these fished extensively by the general public?
A. Yes, they are. |
Q. And is there any cooperation between the State and
the Forest Service on the fishing of these areas?
A. Yes, there is.
Q. And what does this consist of?
A. Generally, the fish improvement structures are
small dams of this nature. They have helped us with
the funding; we have provided the manpower and have
done the work. They also stock these streams for us.
Q. And do they issue fishing licenses for these?
A. That’s the prerogative of the State to do this.
They issue the fishing licenses and regulate the fishermen.
Q. Now is any figure shown in your printout for water
to maintain these fishing streams?
A. Yes. This is an underestimate, as we know now.
Q. You state that it is an underestimate at the pres-
ent time?
A. Yes.
And can you explain how this came about, that you
71] realized that it is now an underestimate?
A. Based on what we needed to develop the stream
for a fishery, the very minimum flow, and this would in-
volve the actual building the structures in the streams
to create pools.
91
Q. Now, does the size of the stream in any way limit
the amount of fishing that is available?
A. It certaintly does.
Q. And you state that at the present time these fig-
ures are inadequate?
A. Yes.
Q. Could you at this time come up with a figure that
would be adequate for these streams within the very near
future for future foreseeable uses?
A. I do not know until we develop and perfect the
survey method for in-stream flow requirements.
Q. In other words, you don’t even have the method at
the present time?
A. No, I don’t.
Q. Now, Mr. Ritchey, some mention has been made
here of a structure or proposed structure by the name of
Noonday Lake. Could you tell the Court what Noonday
Lake is, or what it is proposed to be?
A. Noonday Canyon is a tributary of the Mimbres
River. It is a canyon which flows through the village of
San [72] Lorenzo. There is in these inventories a pro-
posal for a fishing lake on Noonday Canyon. This stems
from a recreation development proposal by the three C’s
in the thirties which was carried into recreation manage-
ment plans made in the forties, which was further devel-
oped by the New Mexico Fish and Game Department in
the fifties. And the proposal is now involved in the
Bureau of Reclamation Proposal on the Mimbres project.
This is where it’s developed at today. It originated from
a three-C project that would have been built, except that
the three C’s were disbanded in 1941 at the start of
World War II.
Q. Was a figure shown in your inventory for a pro-
jected—for the needs for water for Noonday Lake?
A. Yes, there was. But that figure is preliminary. It
was a guess that I made on the data that I had available
at the time.
Q. Now, what are some of the things that would con-
* * amount of water that would be used in Noonday
ake?
A. Well, the actual consumptive use would be evapora-
tion from the lake surface and possibly that evaporation
92
would be greatly reduced because of the location of the
lake, down in a deep canyon. It only gets the full effect
of the sunlight in there, oh, just a limited part of the day.
It’s shaded quite a bit. That would greatly [73] reduce
evaporation loss, which is possibly an error in that esti-
mated figure I have.
Q. Now, are the plans—
THE COURT: Would you say that you overestimated
the use there, you think?
THE WITNESS: I could have, yes.
BY MR. REDD:
Q. Now, are the plans on Noonday Lake sufficiently
advanced that you know the exact size of the structure
that will be built there?
A. No, it would depend now on the Bureau of Recla-
mation’s designs, and they have two alternatives, two dam
sites, in other words. And I do not know at this time in
what state the development—that this is in in the Bu-
reau’s records.
Q. When this was proposed as a CCC project, was any
planning data to the point of saying what size of project
it would be, what size of a dam—
A. I have been trying to find the old CCC records,
but I cannot.
Q. So you don’t know whether they did or not?
A. I do not know.
Q. Would the size of the structure have a direct bear-
ing upon the amount of water that is consumed by this
project?
[74] A. That's true, it would.
Q. How about the amount of rainfall that you get in
Noonday Canyon; would that have a bearing on it?
A. That’s always considered in the design. The evapo-
ration loss is estimated. We actually have a gross evapora-
tion loss. And then we subtract the precipitation from
that. However, the precipitation is naturally very variable.
Q. Do you have a map with you that shows the gen-
eral area of the Mimbres Watershed?
A. Ido.
Q. Could you produce it at this time, please?
MR. REDD: Your Honor, this map is being—I would
like to have it placed on the board here for him to identify
points and to illustrate the general location of these
things. This is a U.S.G.S. Topographie Map, official map
that I am offering, and I would like to have it solely for
the purpose of illustrating this information at this time.
THE COURT: Are you suggesting it doesn’t need to
go in the record?
MR. REDD: I don’t think it’s really necessary. It
could go in if the Court desires to have it in.
THE COURT: The reason for my question is, I just
wondered how he can get it in the typed record [75] with-
out some point of reference?
THE WITNESS: This could be redrafted on a smaller
scale.
THE COURT: That's not necessary. The scale isn’t
going to cause any problem. It’s just a question of
whether it would—do you have copies of it or anything
like that?
MR. REDD: We can have copies made for the record,
Your Honor, and submit this with the original.
THE COURT: I think if he is going to refer to points,
we ought to have some reference in the record.
MR. REDD: Very well. We will—I would like to
have this identified. I would like to have this marked
as U.S. Exhibit Number 5.
BY MR. REDD:
Q. Mr. Ritchey, on this map that has been marked as
Exhibit 5, there are some product blue lines that have
~ aman along certain streams. What does that indi-
cate
A. In our opinion, the permanent waters in the
Mimbres Watershed on the National Forest.
Q. Now, in your inventory, did you include any needs
for these areas that are marked to indicate permanent
flow for fish and for other purposes?
[76] A. Those with the fishery potential we put in the
minimum flow, and again, this underestimate of two cubic
feet per second. That included the upper Mimbres River,
the upper MacKnight Creek, and Iron Creek. Now, the
94
others are very important stock watering in the Mimbres
Drainage, in which the stock drink directly out of the
stream.
Q. And those others that are shown are not streams
that you indicated need for fisheries, is that right?
A. We do not think they have a potential for fishery
development, because—mainly because they’re just too
small.
Q. Now, perhaps with a pen or something, you could
indicate where Noonday Canyon is on this map?
A. Noonday is not shown in blue.
Q. Maybe you could put “A” in the area of Noonday
Canyon? tat
A. So the village of San Lorenzo is here, and this is
Noonday Canyon.
THE COURT: Is it still down here? Does it say so?
THE WITNESS: Les.
BY MR. REDD:
Q. Could you indicate on this map where the Noonday
Lake would be located?
A. Right about this location right here, very close to
the forest boundary.
[77] THE COURT: And where you put the “A”?
THE WITNESS: Right.
BY MR. REDD:
Q. Now, does surface flow normally run from Noon-
day Lake into the Mimbres River?
A. No.
Q. Where does that water go?
A. Most of it is either evaporated from the channel
or goes into the illuvian, the soil material.
Q. Is there any way that we could accurately measure
the amount of water that runs from Noonday Canyon
into the Mimbres River?
A. No way that I know of. We could put a stream
gauge at the dam site. That would only be the water go-
ing past the site.
THE COURT: And as I understand that, most of that
does not get down to the main stream?
THE WITNESS: No.
95
THE COURT: On the surface?
THE WITNESS: Except during flood season. There is
some that goes down through San Lorenzo during flood
season and causes quite a bit of damage.
THE COURT: And some goes down underground, I
assume?
THE WITNESS: Yes. A great deal is also evaporated
78] from the surface as the stream fans out and comes
out of the mountains there.
BY MR. REDD:
Q. Now, the confluence of MacKnight Creek and the
Rio Mimbres, is that somewhere near the town of San
Lorenzo?
A. That’s about approximately ten miles upstream.
MacKnight Creek comes on in.
Q. I beg your pardon, I mean Noonday Canyon?
A. Noonday is right below San Lorenzo.
Q. You mentioned there was some flood damage occa- |
sionally from Noonday Canyon in the village of San
Lorenzo; is that correct?
A. That’s correct.
Q. Now, has the village of San Lorenzo taken any
position with respect to a structure on Noonday Canyon?
A. Yes. One of the citizens has written a letter to a
local resource conservation development committee, asking
for possible help in some sort of floodwater retardation
on this stream.
Q. Now, would the proposed Noonday Canyon Lake
provide some flood protection for the village of San
Lorenzo?
A. It would provide a great deal.
MR. BLOOM: It’s just a legal matter. I take it Mr.
Redd is arguing that flood control is an authorized pur-
pose of the National Forest, and I [79] just wondered if
he had made that point at the pre-trial conference, or if
it has ever been specified that the United States is claim-
ing flood control structures. Because if it’s not, I don’t
see the relevance of the question.
96
MR. REDD: I think this goes back, Mr. Bloom, to the
statement in the policy that was brought out from our
previous witness, that the National Forest uses would be
controlled by the local area and the local conditions, in-
cluding the need for use and water and the use for water
and so forth. And this is one of the considerations that
would be going into the development of this project, that
it would help the people downstream. Although this is not
a valid Forest purpose, but this could be for fe justifica-
tion of such project.
THE COURT: All right. Proceed on that basis.
BY MR. REDD:
. Now, did your project—I think you have already
testified that your inventory did include some water for
Noonday Lake, is that correct?
A. That is correct.
Q. Did you state your opinion as to whether or not
this figure was an accurate figure as to what will actually
be used there, if Noonday Lake is constructed?
[80] A. I pointed out that that figure was preliminary
and that the final figure would rest with the Bureau of
Reclamation’s design.
Q. Now, does your inventory show water for any other
proposed lake, for fishing and recreation?
THE COURT: May I interrupt just a second? The
Bureau of Reclamation, what’s their interest? Is there
some irrigation at San Lorenzo?
THE WITNESS: It originally started with irriga-
tion in the Mimbres project, which included a large dam
on the Mimbres.
THE COURT: Well, is there a Reclamation Park and
Irrigation District in that area?
THE WITNESS: There may be, but I do not know for
a fact.
THE COURT: For example, I don’t think that the
Bureau of Reclamation builds dams, either for wildlife,
fish, or flood control. I may be wrong.
97
MR. REDD: Your Honor, perhaps I could state here
that although the primary purpose of the Bureau of
Reclamation, originally at least, was to build irrigation
projects.
THE COURT: Multiple?
MR. REDD: Many other things often enter into these,
and many other projects in this day and age [81] are
only a small part of the Reclamation’s projects. There are
people that have the expertise and people that plan and
develop these projects.
THE COURT: I thought they still had to have a
major reclamation purpose. I might be wrong.
MR. REDD: I think that the figures will show that
today that there is more water going into municipal use
and commercial use than there is into reclamation.
THE COURT: All right. Go ahead.
BY MR. REDD:
Q. Now, did your intentory show any need for any
other reservoirs in the Mimbres Watershed of the Na-
tional Forest?
A. There were other reservoirs proposed in those.
The Forest included two on Gallinas Creek, the upper
and lower, and one called Cooney on the upper Mimbres.
Q. Is this listed specifically under those reservoir
names?
A. Yes.
Q. Now, at the present time, would you say that those
figures that are shown in there are accurate estimates
and predictions of the amount of water that would be
used by these projects if built?
A. I have no figure for those, because I have nothing
to [82] base them on.
. Then you made no estimate as to the amount of
water that would be used?
A. No estimate, other than the fact that the project
proposal existed, and they did emanate from old CCC
pro
. Now, what is your judgment with respect to these
projects, if built? Would they be valid projects in the
prudent management of the National Forest resources?
4 pow a eee et
98
A. They certainly would be valid. The fisheries—rec-
reation is one of the great shortages on the Mimbres.
There is very little fishery opportunity there.
Q. Could you identify the upper and lower Gallinas
Reservoir, with the letters B“ and C“?
A. Upper Gallinas is B“ and lower Gallinas is C“.
Q. Now, I notice that these are shown on segments of
streams which do not show perennial flow, is that correct?
A. That’s true.
Q. And would it be correct to say that the only flow
that you would get there would be after heavy, during
and after heavy precipitation?
A. Yes.
Q. Now, generally speaking, is there surface flow from
those streams where the upper and lower Gallinas [83]
Reservoirs are proposed that runs into the Mimbres
River?
A. Only floodwaters; there is no permanent waters
that I know of.
Q. And to your knowledge, is it presently possible to
estimate the amount of water that flows from those
streams into the Mimbres River?
A. It would be very hard to do?
Q. And you state that no water was shown for these
reservoirs?
A. No, because of the preliminary nature of the data.
No indication of a possible dam height or even of the
material the dam would be built out of.
Q. Has serious consideration been given to the build-
ing of these projects?
A. Yes, they are in the Bureau of Reclamation pro-
posals.
Q. And you state that these first date back to the CCC
days?
A. Yes. For these, it is hearsay. It was based on the
people that I obtained my data from.
Q. Now, you mentioned another reservoir by the name
of Cooney Reservoir?
A. Yes.
Q. Could you identify with the letter “D” where
Cooney Reservoir would be?
99
A. That’s on the upper Mimbres.
[84] Q. And this is in the area where perennial stream
flow is shown, is that correct?
A. Yes, we show it, but because of the nature of the
stream channel, while the surface flow goes all the way
some years, it retreats back up above.
Q. When was this project first proposed, to the best of
your knowledge?
A. This again was a CCC project or proposal, and then
in the fifties, was picked up by the New Mexico Depart-
ment of Game and Fish for consideration, and is now in
the Bureau of Reclamation’s proposal.
Q. You state that this was picked up by the Depart-
ment of Game—State Department of Game and Fish?
Did they advocate the building of this structure?
A. Yes, they had a set of plans and designs, but again,
I can’t show a figure for this.
Q. You did not show any figure for that?
A. No.
Q. To the best of your judgment, would the—would
the construction and operation of this reservoir as a
fishing and recreation reservoir be a valid use within the
prudent management of the forest resources in the Mim-
bres Watershed?
A. Yes, it would.
. Are there any other reservoirs that there are pro-
posals [85] for to your knowledge that were not ade-
quately inventoried as to future uses in your inventory of
the Mimbres Watershed for future needs?
A. These were the primary ones, other than the large
Bureau proposal, and I have no data on that other than
future campground needs.
Q. Now, with respect to these future campground
needs, are there variables with respect to that?
A. Quite a bit. It would depend upon the planning
of the campgrounds as to how much water is needed, how
many wells, and where they could be located.
Q. What are some of the things that water would be
used for in a campground site such as this?
A. Primarily domestic. Drinking water primarily, but
also for sanitation facilities.
100
Q. Now, would there be a substantial difference in the
amount of water for this camp or a relatively smaller
camp or if it were a larger camp?
A. I don’t think so. I think the pressure on the fish-
ing lake would determine this. The campgrounds may
have six units, but a particular unit, it may have a great
many more people using it.
. What about the type of sanitation facilities around
which are needed to go in there?
A. Our regulations indicate that we have to provide
some [86] type of sanitary facility. Were it a larger
project that would attract a great many people, that
would involve something like a water flowing system for
the water—or waste material, and to treat it.
Q. Would this be required for a smaller campground?
A. Possibly not, but this depends on the regulations
that exist at the time that this is constructed.
. These could change and change the amount of
water that is needed there?
A. Could change drastically in the last few years.
Q. In view of this, would you say that your figure
that you put in your computer printout for a recreation
site at that area would be accurate?
A. It could be very inaccurate.
Q. Would it be possible at this time to give an ac-
curate estimate as to the amount of water that would be
needed for the campgrounds at that site?
A. No, because this would depend upon the design.
Q. Now, can you state that a figure was given for this
particular project at the lower Mimbres site for the
amount of water that would be used there?
A. Yes. I
This text is long and has been trimmed here. Open the source document for the complete record.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.