Sunday, September 21, 2008

Broe water update

Bruce Frederick, Staff Attorney with New Mexico Environmental Law Center represents a number of protesters opposed to the Broe Land and Acquisitions III, LLC applications. Broe filed multiple applications to appropriate 1000s of acre-feet of water, which are being considered by the State Engineer in two separate cases. In the first case, Broe is seeking to appropriate about 2500 acre-feet per year, mostly to allegedly irrigate State Trust Lands that it has under lease with State Land Commissioner Lyons.

Frederick filed a motion for summary judgment based on a statute in the 1907 Water Code that requires irrigation water rights to be owned by the same person who owns the irrigated land, i.e., the title to the land and the irrigation water right cannot be split, subject to a narrow exception that does not apply to Broe. Broe’s applications violate this law because Broe would end up owning an irrigation water right that was appurtenant to State Trust Land—land that Broe does not own. The Land Office also has policies and laws that require irrigation water rights to be in the Commissioner’s name. OSE weakly opposed the motion, although it did not dispute the basic contention of law.

Frederick also sent a long list of Interrogatories and Requests for Production to Broe requesting that it fully document and justify the amounts of water they were attempting to appropriate, among other things, and to prove that they would be able to put the water to beneficial use within a reasonably period of time (which is a requirement under our law).

Broe’s attorney requested a week extension to respond to the motion and then still did not file the response. After a couple days of not responding to phone calls, Broe’s attorney sent Frederick an email stating that Broehas determined that it no longer wishes to pursue the applications, and that Broe’s attorney would be submitting a withdrawal to the OSE Hearings Unit today.

While it is still not known whether Broe’s withdrawal of applications will apply to both cases, it is nevertheless a victory in either case.

The first scheduling conference for the second case will be on 9/29. Mr. Frederick should know the scope of Broe’s withdrawal by then.

Broe is a major international corporation, like those backing Augustin Plains Ranch, LLC, so please spread the news about this victory.

Bruce Frederick, Staff Attorney
New Mexico Environmental Law Center
1405 Luisa Street, Suite 5
Santa Fe, New Mexico 87505
505-989-9022, ext. 26

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