Caught in the middle

Richard Fresquez, left, talks with Betty Montoya and her grandchildren, Lisa Jaye Gandert, 1, and Herminio Espinoza, 12, at her home in Encinal Canyon near Cleveland, N.M. Montoya and about 12 other homes in the area have been without water for a year. (Eddie Moore/Albuquerque Journal)

Copyright © 2021 Albuquerque Journal

CLEVELAND, N.M. – Although they live below the acequia that has irrigated their property in Encinal Canyon for more than a century, about a dozen families find themselves caught in the middle of a dispute between a local farmer and the association that has taken over managing the Acequia de los Vallecitos de San Ysidro.

“My house has been bone dry since July of last year,” said Elizabeth “Betty” Montoya, who says her family has lived in the Mora Valley for seven generations – eight counting her grandchildren who live nearby. “The water used to flow beautifully down here. Now, my son and daughter-in-law have to go to a spring to pick up water.”

Not only does the water no longer flow down a diversion from the acequia, but also their wells have gone dry. They drink bottled water, but there’s no running water to wash clothes, dishes or to clean the house. She has to walk to where her son parked a used R.V. in order to take a shower.

Her brother also lives in the canyon and the family has had to sell their livestock because they can’t keep the animals watered.

“I used to have a garden, but I can’t because there’s no water for the plants,” she added.

Richard Fresquez walks along a drainage that was filled in by the acequia association over a dispute over fees. The dispute has left about a dozen homes in Encinal Canyon near Cleveland without water. (Eddie Moore/Albuquerque Journal)

That’s because the acequia association filled in a diversion channel that used to direct water to the property of Richard Fresquez because of a dispute over fees the association says he owes. Fresquez used to release some of the water to the people in Encinal Canyon when he was in charge of the ditch, but now he’s not getting any water.

When he was able to irrigate, the water would seep into the soil and recharge the wells in the canyon. But because water isn’t getting to his fields, the wells have been dry for a year now.

“The county brought a water buffalo down here, but then they took it away,” Montoya said, using the term for a tanker truck carrying hundreds of gallons of water. “Now, we have to bring it in or get it from a spring my son and daughter’s friend dug.”

Montoya said she complained to Mora County, the New Mexico Acequia Association and the Office of the State Engineer, which administers water rights in the state – all to no avail.

Mora County government is in transition right now. Interim County Manager Tamarah Barela declined to answer any questions regarding the matter last month, referring a reporter to the newly hired county attorney, who was not familiar with the situation.

Paula Garcia, executive director of the New Mexico Acequia Association, said she’d like to help, but the NMAA doesn’t get involved in the internal affairs of the acequia associations they represent.

“It’s a difficult situation because there are different sides to the issue and multiple layers of conflict,” she said.

And the Office of the State Engineer has determined that, even though the families in Encinal Canyon have been getting water from the acequia for decades, they are not legally entitled to it.

“They aren’t even part of the acequia,” said Tim Farmer with the OSE office in Cimarron.

That doesn’t make any sense to Montoya.

“I’m disappointed the most in them because they ruled against us,” Montoya said of OSE. “First, they said the water rights were ambiguous; then, they said you don’t have water rights. I’m like, ‘What? No water rights? We have been getting water from that ditch forever.’ ”

A multi-layered problem

Montoya and the other homes had been getting water because Richard Fresquez had been the mayordomo, or “ditch boss,” for the acequia for decades before a small group of parciantes – irrigators who own water rights attached to their properties – formed their own acequia association for Acequia de los Vallecitos.

Richard Fresquez collects eggs from his chickens on his farm near Cleveland, N.M. The acequia he used to get water from for his livestock has cut him off. (Eddie Moore/Albuquerque Journal)

“They made their own bylaws and made up their own rules,” said Fresquez, who operates a 320-acre ranch where he raises chickens, goats, sheep and used to grow hay until he stopped getting water. “They made it so I can’t irrigate. Now, I’m having to pump it.”

And the water he pumps is mostly for the livestock. He doesn’t have the water to soak his hay fields.

There’s a reason Fresquez isn’t getting any water.

“He’s been fined five times. We send him letters and he continues to take (water) on his own free will,” said Carla Gomez, current mayordomo for the acequia, which consists of about 6 miles of channel. “He thinks the entire ditch runs through the property and he doesn’t have to share it.

“We’ve been fighting over this for five years,” she continued, sounding exasperated during a phone interview. “When we formed the association, he wasn’t happy, and he didn’t agree and he wanted the majority of the water to go to his property. Especially in times of drought like this, it needs to be shared.”

Last September, the acequia association filed a civil complaint against Fresquez in Mora County magistrate court, seeking $1,205 in unpaid fees plus interest, attorney’s fees and court costs. The case was dismissed last month on the grounds that acequia associations are considered political subdivisions of the state, so the case would need to be heard in state district court.

But, as Garcia said, there are multiple layers of conflict over the matter.

For one, Fresquez and Gomez used to be both romantic and business partners, but had a falling out.

Five years ago, Gomez filed a lawsuit against Fresquez seeking half the assets, inventory, grazing rights, land-use rights and livestock of the ranch they operated together, according to court records. The lawsuit says that Gomez moved in with Fresquez in 2007 “anticipating that she and the defendant would build their future together.” A business contract and IOUs from Fresquez to Gomez were included as part of the court filing.

Fresquez made a counterclaim and both parties agreed to drop the matter in 2018, court records show.

And there’s more.

In 2011, Fresquez was sued by another former business and romantic partner.

Wendy Capek said in her complaint that she and Fresquez lived together on his ranch from 1997 to 2007, and had a son together. She claimed that Fresquez agreed to pay her more than $17,000 as part of the separation agreement, and that Fresquez agreed to lease Capek a residence on the property for $12 per month over a 10-year period, and to pay the utilities as a form of child support. An out-of-court settlement was finally reached in 2014 and the case was dismissed with prejudice.

Capek happens to be treasurer of the three-person Acequia de los Vallecitos association board of commissioners, meaning the majority of the board is made up of former business/romantic partners of Fresquez who have filed lawsuits against him in the past.

Fresquez thinks that’s one reason why he’s getting his water cut off. Another reason is the third member of the acequia board, Rey Villa, who Fresquez said has bought hundreds of acres of land in the valley and the water rights that go with it.

“What criteria are they using (to decide who gets water)?” Fresquez wants to know. “I think it’s all political. I hate to think like that, but I can’t help it. I can’t get anywhere with them,” Fresquez said.

Gomez says the association has tried to work with Fresquez, but he’s the one not cooperating.

“At the beginning of the irrigation season, we called and left a message saying ‘Let’s not continue to play these games,’ ” she said. “He has done everything he can to get around us, other than talk to us.”

Gomez said there’s one easy way to resolve the matter.

“The only thing we’re requesting is that he pays his fines and comply with the commission,” she said.

‘Water is for fighting over’

Garcia, of the New Mexico Acequia Association, says her organization isn’t a regulatory agency and, while they work with acequia associations throughout the state, they don’t get involved with their internal affairs. Their mission is to offer community education, and technical and legal assistance to its members, she said.

But, a native of Mora herself, Garcia is sympathetic to the families in Encinal Canyon.

“There are people in crisis because their wells are drying up. They don’t have anywhere else to go. Those are their homes, so it’s been really hard,” she said.

The old saying “water is for fighting over” is even more pertinent today during years of drought. Garcia says she’s been hearing about more conflicts over water than ever.

“A lot of this is the result of there being less and less water. It’s putting stress on people,” she said. “There’s definitely a major concern with a diminishing water supply during a long-term drought and it’s creating conflicts, but every one is unique. We’re still sorting out what can be done to resolve this conflict.”

While Garcia said the NMAA doesn’t get involved in internal disputes, she and Gomez both said the Acequia de los Vallecitos worked with the NMAA’s attorney to draft a set of bylaws and establish a form of governance.

“In past years, there was water that was left over, or water from the ditch would flow down the drainage to Encinal,” Garcia said. “They are governing themselves differently, so there’s no water coming down the drainage.”

Meanwhile, Farmer, director of the OSE office in Cimarron, said he can’t help those families if they don’t own the water rights.

“Richard was mayordomo for many years, and probably his father was and his grandfather was, and they ran the acequia a certain way,” Farmer said. “Now, there’s a different group of people that moved in, and elected a new ditch committee and drew up bylaws. They did all the things an acequia is supposed to do, but they are running it different.”

Farmer said that, while there is a declaration on record for the acequia from 1938, it’s vague and doesn’t include a map. There’s nothing that shows the people in Encinal Canyon are entitled to any water.

“They don’t have a right to that water; that water is not supposed to go down there. He (Richard) should only have enough water for his acreage and shouldn’t send a drop of water down their way,” he said.

Farmer said the state would like to help the people in the canyon by getting them a permanent source of water and his office is working with the state Environment Department to find a solution.

“We’re trying to get them a community well so they can grow their gardens and have it for their kids,” he said. “That’s the best thing that could come out of this for these people, because, right now, they have to haul water in for them and their animals. It’s not a good situation.”

No one knows that better than Montoya and the other families in Encinal Canyon that have been without water for a year. She’s frustrated by the lack of help, the bureaucracy and the situation they find themselves in.

“I’m disappointed in human nature. No one should have the right to take away water,” she said. “Water is life.”

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