Copyright © 2014 Albuquerque Journal
The water is drying up, making every stream worth a fight.
Ranchers in Otero County are wrangling with the Forest Service over a patch of land where a creek called Agua Chiquita runs.
The Forest Service says it built a new, sturdy fence to keep cattle away from a recovering river habitat, but cattlemen say the new fence and locked gates infringe on long-standing water rights.
The battle goes beyond a single stream and the single ranching family directly affected, say ranchers and county officials, and rests on the principle that even on federal land, ranchers holding water rights dating to before 1907 – as often happens in Otero County – should have access to the water, including the portion downstream of the fenced-in area.
The Forest Service says it has a right to manage the land, including where water flows.
After the Forest Service refused to open the gates, the Otero County commissioners this week demanded the sheriff cut the locks, potentially igniting a confrontation on the order of Nevada’s Cliven Bundy, the rancher who has rallied armed supporters in a fight against federal land managers. So far cooler heads have prevailed in New Mexico.
The U.S. Attorney’s Office has agreed to mediate the conflict next week, according to Otero County attorney Blair Dunn and a spokeswoman for Rep. Steve Pearce, R-N.M. The U.S. Attorney’s Office declined to comment.
“I really, truly believe the U.S. Attorney is going to be able to facilitate this in a fashion that prevents it from escalating to what happened in Nevada,” Dunn said. “That is where things feel like they are headed.”
Following a 2006 environmental analysis of a 28,860-acre parcel of the Lincoln National Forest, the Forest Service decided to prohibit cattle grazing on 23 of those acres around Agua Chiquita to nurture a wetland area and aid the recovery of threatened species, said Forest Supervisor Travis Moseley. But the barbed-wire fences the service erected were ineffective. Elk trampled them, letting cattle through.
So the Forest Service put up a steel fence and recently locked the gates, angering both the affected rancher and others downstream who say that by creating a wetland area, the Forest Service will dry up the downstream flows that they believe they have a right to use.
“It hasn’t become a Cliven Bundy thing like in Nevada, but it’s coming to that,” said Ted Eldridge, who owns the Oro Grande Ranch in Alamogordo and sits on the board of the Otero County Cattlemen’s Association. “We’re trying to avoid that. But they take a little every year of your private property rights. That’s why we decided to stand up and fight this.”
Only one ranching family, the Holcomb family, is directly affected by the new Forest Service fencing, according to the association. A member of the Holcomb family could not be reached Wednesday, but Eldridge said “it’s a water rights issue” emblematic for all ranchers in the area.
“All the water is shrinking,” he said. “All the springs are drying up. The drought conditions are just killing us.”
Moseley said the Forest Service stands on solid legal footing in its decision to lock cattle out of one part of the Agua Chiquita area.
“The argument has been that we are restricting access to a private property right – that being the water right that may exist there,” he said. “There are some interesting interpretations. But even if there is a water right there, I was advised by our legal counsel that as the surface property manager, we have the ability to manage and restrict access to certain areas.”
Dunn said, “As is with most pre-1907 water rights, there is no record of it in the state engineer’s office. The Forest Service damn well knows that. They are ignoring that legal fact. The Forest Service has no right to use the water.”
The two sides may see the issue through different legal lenses, said Reed Benson, a University of New Mexico law professor and water rights expert, with ranchers concerned about water rights and the federal government concerned with “protecting the land that they are responsible for managing.”
As the drought persists, conflicts over access to water in New Mexico have sharpened, he said. Fewer water sources mean “all the wildlife, all the cattle, all the pressure, goes to fewer and fewer places.”
Frances Goss, who says her homesteading ancestors began ranching in the area in the late 1800s, said she is concerned about the Forest Service infringing on water rights that predate the agency’s existence. The Goss & Goss Ranch, she said, has water rights dating to before 1907 and has been in litigation with the Forest Service for 14 years over access to water on the land.
“We don’t own the dirt and rocks and trees, but we own a right to graze the forage and use the water,” she said.