# Appendix — United States v. New Mexico > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2640%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1978 - **Citation:** 438 U.S. 696 ## 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 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 | ! >\ > 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2640%3A03. Public record. Not legal advice.