Arroyo cleanup lawsuit dropped

Santa Fe County resident Peter Smith stands in an arroyo on his property in December. He and his wife challenged a U.S. Army Corps of Engineers ruling that it had jurisdiction over the dry bed, but Friday withdrew their lawsuit after the Corps changed its assessment. (photo by T.S. Last, Journal staff)

A Lone Butte couple on Friday withdrew a lawsuit they filed in U.S. District Court against the U.S. Army Corps of Engineers after the agency decided they didn’t need to get its permission to clean dead trees and garbage out of the arroyo on their property.

Now Peter Smith says he’s ready to go back to work on the cleanup.

“I’m just waiting for the weather to get a little warmer and then I’ll go back and finish the job,” he said Friday. “I still have a lot of work left, cleaning up dead trees and trash scattered about. I imagine it’ll keep me busy for a while.”

The dispute centered on an earlier finding by the Corps that the arroyo that runs across their property was a “water of the United States.”

Last December, Peter and Françoise Smith, who live on 20 acres of land about 19 miles southwest of Santa Fe, filed a lawsuit disputing the Corps’ assessment that they had violated the Clean Water Act by cleaning vegetation and debris out of that arroyo.

The Corps asserted that a “significant nexus” existed between the Rio Grande and Gallina Arroyo, which it determined to be a water of the United States.

That determination confounded Peter Smith since the arroyo is dry all year, except for a couple of times after heavy rain. Even then, water only flows for about a half hour before dissipating.

So he contacted the Pacific Legal Foundation, a California-based nonprofit that describes itself as a watchdog group that litigates for limited government property rights and a balanced approach to environmental regulations. Pacific Legal Foundation, which had recently won a U.S. Supreme Court decision having to do with water rights, agreed to take up their cause.

“I’m grateful to Pacific Legal,” Smith said in a phone interview. “They did a good job. The average guy wouldn’t be able to fight this alone.”

Smith got a letter last month from the Corps of Engineers notifying him that it had reevaluated its Approved Jurisdictional Determination (AJD). The letter explained that it decided to reevaluate his case while it was looking into an appeal of another decision involving the Calabacillas Arroyo in Bernalillo County.

“Although the Calabacillas Arroyo AJD and the Gallina Arroyo AJD involve entirely different sites, the Calabacillas appeal decision provided new information that contributed to the Corps’ decision to reevaluate the Gallina Arroyo AJD,” the letter said. “The Corps has determined that there are no waters of the United States on your property.”

Beth Pitrollo, assistant district council for the Corps’ Texas-New Mexico division, said other factors played into the re-evaluation. She said the regional division officer received new information on how to assess arroyos last fall and examined some new hydrological data.

“The combination of those two things made us look at the Smith’s situation, and we revised the jurisdictional determination based on that,” she said.

Jennifer Fry, a Pacific Legal Foundation attorney, said the initial jurisdictional decision didn’t make sense in the first place.

“The Smiths’ desert property is bone dry and it is 25 miles away from the nearest navigable water, the Rio Grande,” she said. “On the rare occasion when there is rain at the Smiths’ property, water must pass through a second dry arroyo and then through an intermittent flowing creek and two dams before reaching the Rio Grande. So the federal government’s justification for claiming Clean Water Act jurisdiction over the Smiths’ property was nonsensical.

“Basically they made a mistake and, rather than have a court tell them they made a mistake, they changed the jurisdictional determination,” she said.

While the court didn’t make a ruling, Fry said the result could have wide-ranging effects.

“By refusing to surrender to the unlawful exercise of jurisdiction over their property, the Smiths have held the Corps to the standard of the law,” she said. “And when property owners like the Smiths hold the agency to that standard, it helps to curb this type of regulatory abuse.”

“It’s really a shame it’s called the U.S. Army Corps of Engineers,” added Smith. “In my mind, the U.S. Army is out there fighting for our rights, and here you have the Corps trying to take them away.”

Now that the matter is resolved, Smith said he feels a weight lifted from his shoulders. All he was doing was trying to clean up the property he and his wife bought in 2005, he said. People had taken to dumping garbage in the arroyo, and he estimated there were about 600 dead trees that had fallen victim to a bark beetle infestation, which he considered a fire hazard.