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Motion for Limited Discovery Concerning BOR 2007 Hydrologic Determination: San Juan River

Posted by Steve Cone on 8:00 AM October 8, 2007.

ELEVENTH JUDICIAL DISTRICT COURT
STATE OF NEW MEXICO
COUNTY OF SAN JUAN

STATE OF NEW MEXICO, ex rel.
THE STATE ENGINEER,

Plaintiff,

vs. No. CV 75-184
Honorable Rozier E. Sanchez
THE UNITED STATES OF AMERICA, et al., District Judge Pro Tempore

Defendants, SAN JUAN RIVER BASIN
ADJUDICATION
vs.
La Plata River Section
THE JICARILLA APACHE TRIBE and the
NAVAJO NATION,

Defendant-Intervenors.

MOTION FOR LIMITED DISCOVERY CONCERNING
2007 BOR HYDROLOGIC DETERMINATION

The San Juan Agricultural Water Users Association and the Hammond Conservancy District respectfully move the Court to allow limited discovery concerning the 2007 Hydrologic Determination by the Bureau of Reclamation. A copy of the discovery is attached as Exhibit A.

The grounds for this motion are as follows:

1. A hydrologic determination is a legal prerequisite for storage permits in the Navajo Reservoir, and hence for the Gallup Navajo pipeline.
No long-term contract . . . shall be entered into for the delivery of water stored in Navajo Reservoir or of any other waters of the San Juan River and its tributaries, as aforesaid, until the Secretary has determined by hydrologic investigations that sufficient water to fulfill said contract is reasonably likely to be available for use in the State of New Mexico . . . and has submitted such determination to the Congress of the United States and the Congress has approved such contract . . . .
Navajo Indian Irrigation Project Act, Pub. L. No. 87-483, 76 Stat. 96, 100 (1962). By including this provision in a statute, Congress has explicitly recognized the dire scarcity of water in the Colorado River, relative to the needs of the river. It is the intent of Congress to be absolutely sure that there is enough “wet water” to satisfy the needs of existing users and any new project.

2. When the conditional pipeline settlement was proposed by the State Engineer, it was recognized by knowledgeable parties along the Colorado River that the proposed conditional settlement was problematic due to lack of water. “However, New Mexico has a problem, it has already allocated its full share of the water available under the 1988 hydrologic determination to other uses. Therefore, to comply with the proposed Navajo settlement, New Mexico needs the Secretary to redo the hydrologic determination and, magically, find more water in the Upper Basin.” Eric Kuhn, Memorandum to Colorado River Water Conservation District Board of Directors (Apr. 6, 2006), attached hereto as Exhibit B. (Because New Mexico is only entitled to an 11.5% pro rata share of Upper Basin water, the BOR determination must find that the water supply for the Upper Basin has somehow increased by 173,913 acre-feet, in order to increase New Mexico’s supply by 20,000 acre-feet.)

3. On June 8, 2007, Secretary of the Interior Kempthorne signed a new hydrologic determination concerning the additional 20,000 acre feet of depletion proposed for the pipeline settlement.

4. On its face, the 2007 determination is difficult to explain. It seems to find that the supply of water in the Colorado River has increased since the last hydrologic determination in 1988. This is contrary to virtually all of the scientific studies since 1988. Those studies find that the amount of water in the Colorado River system is shrinking, or was overestimated to begin with. There is no scientific study or scientific peer review supporting the BOR’s new determination.

5. Without additional information, it is impossible for anyone to evaluate the BOR 2007 determination, because the BOR has not revealed or explained the changes which it has made from the last determination in 1988. The BOR has not fully revealed or explained the changes in its formula or computation or model, or in the data that was fed into the formula. The BOR has also not revealed or explained the scientific evidence, if any, that supports these changes.

6. It appears, although one cannot be certain, that the BOR has found additional water, on paper, by recalculating evaporation loss. See Exhibits C and D, attached hereto (Ed Quillen, Making More Water, Denver Post (Sept. 17, 2007) and Steve Cone, A Miracle in the Four Corners, Op-ed, Farmington Daily Times (Jul. 15, 2007)). It seems that the BOR’s reasoning is somewhat along the following lines: Because there is less water in the reservoirs, there is less evaporation, therefore there is more water in the Colorado River system. (The illogic of this reasoning should be readily apparent. It is internally inconsistent.) There may well be other changes in the BOR’s computation, either in its formula or the data input into the formula, but it is impossible to tell.

7. If the BOR 2007 determination is wrong, then the consequences are catastrophic. First, Public Law 87-483 has not been complied with. Second, an incorrect determination creates an environmental and economic disaster for all of New Mexico and the persons who depend on the San Juan River, and for the Colorado River Basin states as a whole. Third, if the 2007 determination is erroneous, then, it will mislead Congress, the New Mexico Legislature, this Court, the parties to this litigation, and the parties who have not yet been joined. Therefore, it is imperative that the validity of this determination be examined now, not years from now, when it will be too late. If the 2007 determination is erroneous, as it appears to be, then the errors need to be identified and corrected before the pipeline settlement is enacted or implemented. It makes no sense to build a pipeline without wet water to put in it.

8. The case management plan expressly contemplates that changes will be made as necessary or advisable during the course of this adjudication. Therefore, the case management plan should be modified to allow limited discovery on this crucial issue. Now that the 2007 determination has arrived, the time is ripe for discovery.

ELEVENTH JUDICIAL DISTRICT COURT
STATE OF NEW MEXICO
COUNTY OF SAN JUAN

STATE OF NEW MEXICO, ex rel.
THE STATE ENGINEER,

Plaintiff,

vs. No. CV 75-184
Honorable Rozier E. Sanchez
THE UNITED STATES OF AMERICA, et al., District Judge Pro Tempore

Defendants, SAN JUAN RIVER BASIN
ADJUDICATION
vs.
La Plata River Section
THE JICARILLA APACHE TRIBE and the
NAVAJO NATION,

Defendant-Intervenors.

INTERROGATORIES AND REQUEST FOR PRODUCTION
CONCERNING 2007 BOR HYDROLOGIC DETERMINATION

Pursuant to Rules 1-033 and 1-034 of the New Mexico Rules of Civil Procedure, the San Juan Agricultural Water Users Association and the Hammond Conservancy District propound the following interrogatories and request for production to: (1) the United States Bureau of Reclamation (“BOR”); (2) the Office of the [New Mexico] State Engineer; (3) the New Mexico Interstate Stream Commission; and (4) the United States Department of the Interior.

In this discovery, “hydrologic determination” refers to the 1988 Hydrologic Determination, or 2007 Hydrologic Determination prepared by the BOR pursuant to Pub. L. No. 87-483, 76 Stat. 96, 100 (1962).

INTERROGATORIES

1. In arriving at the 2007 determination, what changes were made to the 1988 hydrologic determination? Please identify and explain each change in the model, formula or method used, and in the data or assumptions used, and the effect of each such change.

2. What was the scientific basis for each change?

3. Identify each person in your agency who was involved in the 2007 hydrologic determination, and each person outside your agency of whom you are aware, and explain the involvement of each. Please include persons who made comments, questions, communications, or suggestions about the 2007 hydrologic determination, whether formal or informal, whether written or not (including but not limited to, the United States Fish and Wildlife Service).

REQUEST FOR PRODUCTION OF DOCUMENTS

1. Please produce all documents relating to your answers to the foregoing interrogatories.

2. Please produce all documents relating to the 2007 hydrologic determination, including all documents in electronic form as specified in Fed. R. Civ. P. 34(a).

Respectfully submitted,

VICTOR R. MARSHALL & ASSOCIATES, P.C.

By
Victor R. Marshall
Attorneys for San Juan Agricultural
Water Users Association and the
Hammond Conservancy District
12509 Oakland NE
Albuquerque, New Mexico 87122
505-332-9400 / 505-332-3793 FAX

I hereby certify that the foregoing was faxed
and emailed to Bradley Bridgewater, Esq.;
emailed to the parties on the following list;
and mailed to Stanley Pollack, Esq. and ‘
Jolene McCaleb, Esq. this day
of , 2007.

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