Gaume sued the Interstate Stream Commission in October, alleging the commission violated the Open Meetings Act in its deliberations regarding the future of the Gila River. The commission later countersued, claiming Gaume intended to hold up a decision that had to be made by the end of last month.
“The ACLU feels this is a very dangerous precedent that if allowed to stand could silence New Mexicans and render transparency laws meaningless,” said Daniel Yohalem, a Santa Fe civil rights attorney working with the ACLU to defend Gaume.
In his lawsuit, Gaume had asked the court to impose a temporary restraining order against the commission while the lawsuit was pending. He alleged the ISC did “all of their detailed discussions behind closed doors, including massive amounts of contracts” – an allegation the ISC has denied.
The commission faced a Dec. 31, 2014, deadline to inform the federal government whether it planned to pursue a project to divert water from the Gila River under a 2004 settlement with Arizona.
The court ultimately allowed the commission to proceed with its decision-making process and, without missing its deadline, the commission voted in November to pursue a diversion project.
The commission then decided to countersue Gaume and seek damages, claiming he sought the temporary restraining order “for the wrongful purpose, and with the wrongful intent” of forcing the commission to miss its deadline.
An ISC spokeswoman did not return a request for comment Wednesday, but chief counsel and acting ISC director Amy Haas previously told the Journal that Gaume’s lawsuit caused the commission “extreme hardship.”
“Their response to that is to try to intimidate me,” Gaume said. “I think that that’s the kind of behavior that a citizen needs to stand up against.”
Gaume has said the damages sought by the state for attorneys’ fees and experts’ time could top $100,000.
Yohalem said that, in 27 years as a New Mexico civil rights attorney, he has never seen a public agency sue a private citizen.
The ACLU claims the state’s attempt to countersue – and seek damages from – a private citizen constitutes an illegal “strategic lawsuit against public participation,” or SLAPP suit. New Mexico prohibited such lawsuits in 2001.
The fate of the Gila River has been a point of extreme contention between the ISC, which wants to explore diverting water from the river for use by four southwestern counties, and those, including Gaume, who believe the financial and environmental costs of the project outstrip the potential benefits.
The state has said it is not committed to pursing a diversion project if it is too costly.
The Arizona Water Settlement Act provides some $62 million to the state to pay for a diversion. Cost estimates have ranged as high as a $1 billion, the Bureau of Reclamation’s early calculation.
Gaume, a retired engineer, served as ISC director from 1997 through 2002.