Saturday, June 17, 2006

December hearing set for water rights case

Jane Moorman News-Bulletin Staff Writer; jmoorman@news-bulletin.com

Santa Fe The farmers in Bosque will get their day in court, so to speak.

Andrew Core, hearing examiner with the Office of the State Engineer, has scheduled a December hearing regarding the transfer of pre-1907 water rights into a supplementary well on 600 acres of newly cultivated cropland south of Belen.

During a scheduling hearing on May 23 in Santa Fe, Core heard a summary of the farmers' argument by their attorney, Jesse Boyd.

"This is a complex transfer," Boyd said. "There are a lot of issues this applicant is facing. But the main issue is if the land is legally capable of being irrigated. If, in fact, this land is found to not be in the Middle Rio Grande Conservancy District benefited area, and land is incapable of accepting MRGCD water, than transferring water rights into a supplementary well is moot."

Tessa Davidson, attorney for landowner Roy C. Mercer LLC, a limited liability corporation managed by Mike Mechenbier, argued that it is legal to transfer pre-1907 water rights anywhere within a basin whether the new location is within MRGCD boundaries or not.

Boyd told the hearing examiner the benefited area is relevant in this case because "we need to know the underlying (water) rights that they are supplementing. You can't make this type of transfer if there are no (water) rights on the property."

He added that if the land is capable of being irrigated, "then the transfer would be stacking water rights, which is contrary to MRGCD rules which would also make the transfer moot."

Boyd asked to have the hearing stayed until "it is determined if the land is capable of receiving conservancy water."

MRGCD is currently having independent council, attorney John Draper of Santa Fe, continue to review the historical documents regarding the district's beneficial area regarding if Mechenbier is eligible for irrigation water in a field south of the intersection of the Belen High Line Canal and Feeder 3, which is west of Interstate-25 south of Belen.

He said earlier this week that the 300 acres are within the benefited area. The board asked Draper to research whether the land's beneficial use status has been removed from the appraisal record by court order or if taxes have not been charged by the district.

MRGCD Board Member William Turner has argued that the 600-acre farm lies outside of the historical benefited area. The conservancy district's executive director Subhas Shah says the benefited area lies between the high line canals on both sides of the river.

However, Core decided to proceed with the water right transfer hearing. The attorneys agreed to provide witness lists on July 21, exhibit lists on Aug. 18, rebuttal witness lists on Sept. 15, discovery on Oct. 13 and objections and motions on Nov. 13. The hearing will be held Dec. 12 and 13.

Core acknowledged that a protest had been filed regarding having the hearing in Santa Fe. Boyd said his clients would like the hearing held in Valencia County. Davidson asked that it be in Albuquerque because of difficulties that sometimes occur when technical issues arise.

Core said the location would be announced in the future.

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