Judge Woods files final order in San Agustin water battle

After a nearly two-decade long legal battle, Judge Roscoe Woods of the Seventh Judicial District Court filed a final order in the San Agustin Plains water court case.

Augustin Plains Ranch, LLC (APR)opposed the final order from the April 5 court hearing on the San Agustin Plains legal battle over water.

In April, Judge Woods upheld the State Engineer’s denial of The APR’s application to pump 54,000-acre feet of water a year from the San Agustin Plains basin. In his verbal ruling, Judge Woods said APR’s evidence was speculative and without specificity and failed to show proof of beneficial use from an end user.

Judge Woods requested the State Engineer’s lawyers to submit a proposal for the final order, which was distributed to all parties.

Lawyer Doug Meiklejohn, who represented Carol Pittman’s Protestant group, said that ideally, all the parties agree on it and then submit it to the Judge, who decides whether to sign off on it. However, in this case, APR did not agree with the order.

“There was an argument raised, and there was a dispute between the State Engineer Office, which submitted a proposed order because APR said that the written order couldn’t include something that the judge didn’t specifically say in his oral ruling from the bench,” Meiklejohn said.

On August 21, Judge Woods held a presentment hearing to address the opposition from APR.

Ann McCartney of New Mexico Environmental Law was present at the hearing and said APR’s lawyer, Kaleb Brooks, argued certain statements in the order should not be included because Judge Woods did not specifically make those statements in his verbal final ruling. The State Engineer’s lawyer, Simi Jain, argued that although those statements were not made during the final ruling, Judge Woods made those statements during the course of the hearing.

“Finally, the Judge asked Ms. Jain and Mr. Brooks to each submit their proposed forms of order to him in a Word (document), and he would make a final decision,” McCartney said.

The final order submitted by the State Engineer’s Office without contributions from APR was signed by Judge Roscoe Woods and filed in the 7th Judicial Court on August 23.

“Judge Woods entered the most complete and detailed form of final order, citing important NM case law to support his ruling, and thus protect the groundwater,” Mc Cartney said “The judge’s final order keeps this precious water in the ground for now and upholds New Mexico law on beneficial use governing appropriation of water.”

Attorney Adren Nance, representing the Socorro County Board of Commissioners, was also pleased with the order but said it was hard to know if the water battle of the San Agustin Plains was over.

“Based on its history, I’m afraid that it will continue,” Nance said “I think that we will continue to keep winning, but how far are they going to push it?”

APR will have 30 days from August 23, to appeal the final order granting New Mexico State Engineer’s motion for summary judgment. If they do, the case will go to the Court of Appeals and potentially go to the Supreme Court.

Eileen Dodds of the San Augustin Water Coalition believes given her experience fighting the “water grab” they’ll likely appeal.

“They won’t go away; they have a lot invested, as we do, and the fight will continue until they find some entity to buy the water,” Dodds said.

The Final Order

In the final order, the motion for summary judgment addressed two issues, whether the State Engineer was correct in denying the application as speculative and whether the State Engineer was correct in accepting the application as complete for filing.

The final order confirms there was no error on the State’s Engineer’s determination that the APR application is complete. It also concludes that the request was speculative, did not confirm a demand or end user. The order said, accepting the request would allow APR to control, monopolize and deprive the public the opportunity to appropriate water for beneficial use. It would also be contrary to the benefit of the citizens and would set a bad precedent.

History

In 1968, Bruno Modena of Italy bought what was formerly known as the Moody Ranch, which is about 18,200 acres in size, through a New York law firm, now known as Augustin Plains Ranch LLC.

The San Agustin Basin, about fifty miles west of Socorro, supplies water to northwestern Socorro and northeastern Catron County. The basin, almost 2,000 square miles in size, is a closed basin, meaning that all water that falls into it stays within it. There are no perennial streams in this basin.

It is shared by two counties, Catron County, which covers approximately 1,551 square miles and Socorro County, which is about 441 square miles.

The ownership of the basin breaks down to 42% private owners, 25% state, 11% Bureau of Land Management and 22% Forest Service. San Augustin Plains Ranch LLC, included in the private owners, owns only 1.4%.

In October 2007, the first drilling application was submitted from APR to the State Engineer’s Office. The application initially drew 250 protests, which continued to grow. The San Augustin Water Coalition was created out of concern for the application.

Since 2007, the first drilling application was amended, denied then appealed. The court of appeals determined it was moot because during that time APR had submitted a second application similar to the first. In 2018 the second application was denied and appealed again.

“This foreign corporation, which owns 1.4 percent of the landmass of the plains wants to mine 54,000-acre feet annually until the water is gone. They claim there is water for 30 years,” said Dodds “This is a closed basin, with no rivers or streams flowing into it. According to a 2020 study by New Mexico Tech University, there has been no measurable recharge to the aquifer in the last 75 years; in fact, the aquifer has been in decline over the 25 plus years.”

The San Agustin Water Coalition continues to have regular meetings on the case.

Dodds said they will continue to fight the “water grab” from APR.

EDC’s attempts to reach APR’s lawyers for comment before deadline were unsuccessful.