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     WHITE
KOCH, KELLY
       &
     McCARTHY
     A Professional Association

November 21, 2003

VIA FACSIMILE (505) 624-95109 AND MAIL

Ms. Bee J. Clem, Clerk
Chaves County Courthouse
P.O Box 1776
1597 South Main Street
Roswell, New Mexico 88202-1776

ATTN: PECOS RIVER STREAM SYSTEM WATER RIGHTS ADJUDICATION
                STATEMENT OF INTENT TO FILE OBJECTIONS

Dear Madam Clerk:

Please file the following Statement of Intent to File Objection submitted by the Tracy/Eddy Farms, et al., Defendants in the Carlsbad Irrigation District Phase of the State of New Mexico ex rel. Engineer v. Lewis case, Nos. 20294 and 22600 consolidated. Fifth Judicial District: Process may be served or. these objectors at the law offices of White, Koch, Kelly & McCarthy P-A., PO Box 787, Santa Fe, New Mexico 87504-0787

Statement of Intent to File Objection

Defendant owners of the Tracy/Eddy Farms hereby state their intent to file objections to the approval of the proposed Joint Motion for Entry of Partial Final Decree with Attached Exhibits.

     1.     The Motion seeks Court approval by a Partial Final Decree of a CID sub-file Order and an extensive Agreement among me moving parties. The Agreement, which the moving parties propose to adopt by reference as part of the Partial Final Decree concerning the rights of the Carlsbad Irrigation District, violates Article XVI, Section 2 of the New Mexico Constitution. This provision recognizes the exclusive application of the Doctrine of Prior Appropriation to the appropriation and use of public waters owned by the people of New Mexico. The Doctrine of Prior Appropriation is also recognized as the exclusive law governing public waters of New Mexico by statute law and by the Pecos River Compact between the States of New Mexico and Texas Article IX of the Compact provides that:

In maintaining the flows at the New Mexico/Texas state line required" by this Compact- New Mexico shall in all instances apply the principle of prior appropriation within 'New Mexico,

The Agreement among the moving parties, for which they seek this Courts approval, viola provisions of the Constitution and statutes of New Mexico and Article IX of the Pecos River Compact because it is based on purchase of junior rights, their transfer to a new augmentation well field, and the formal waiver of priority enforcement rather than on priority enforcement required by law.

     2.     The undersigned Defendants further object to the entry of the order sought by the Movants on the grounds that the Agreement violates Article IX, Section 14 of the New Mexico Constitution (the Anti-Donation Clause), because it seeks the Court's approval of the expenditure of many millions of dollars of New Mexico public funds for the purpose purchasing water rights of junior appropriators within the Pecos Valley Artesian Conservancy District. Under the Doctrine of Prior Appropriations the water rights of every appropriator of Artesian and shallow ground water of the Pecos River Steam System within me PVACD are, and have been for many years, subject to abridgement on the order of the State Engineer, and/or courts, in response to priority enforcement by the owners of senior downstream Pecos River rights. If priority were to be, or had been. enforced as plainly required by law, these junior rights would have been terminated without compensation and rendered worthless. The senior rights of the Carlsbad Irrigation District farmer members have been decreed by order of the federal court since 1933, and it is the straightforward duty of the State of New Mexico acting through its State Engineer and its courts to enforce the Doctrine of Prior Appropriation against any and all those owners of junior upstream ground-water rights diverting waters of the. Pecos River Stream System and thereby reducing the flow's of the Pecos River that reach the senior downstream appropriators.

          The nature, extent, purpose, priority and ownership of such shallow and Artesian ground water uses have been decreed by orders of the New Mexico courts for more than 30 years, and the CID filed its demand for priority enforcement against junior appropriators of Pecos River Stream System waters in New Mexico as of 1974, but State officials have entirely failed to discharge their duty to restrict the ground water diversions of decreed ground water right owners within the PVACD for the benefit of the senior downstream water right owner since that time, although the priority enforcement demand has never been withdrawn, and the continuing trespass on the senior downstream rights over many decades; has not been disputed or eliminated The Agreement, which, the moving parties seek to turn into the fiat of this Court by their pending Motion, would-substitute, for the State’s clear legal duty to enforce Prior Appropriation, a scheme under which agencies of the State would use tens of millions of dollar of public funds to purchase water rights voluntarily sold by owners oft the junior upstream rights in the PVACD and then transfer those rights to a new State-financed augmentation well field by means of which supplemental ground waters would be produced and delivered into the Pecos River for the purposes of(.(1) making the State's annual deliveries required by the Pecos Rive Compact and by U.S. Supreme Court decisions interpreting that Compact, and (2) for supplying the surface water demands of the CID and its members. In exchange for this, CID and the U.S have agreed not to enforce priorities against the PVACD farmers in the future (except in one narrow circumstance). PVACD farmers' diversions over many decades have depleted the base flow of the Pecos and caused massive and continuing water shortage and associated salinity problems for senior appropriators in CID, and impaired New Mexico's ability to deliver water at the State line as required by the Pecos River Compact. This scheme to expend millions of dollars for the benefit of the junior water right appropriators of PVACD, as an alternative to simply enforcing priorities as required by the Constitution and statutes of New Mexico, and as specified in Article IX of the Compact as the exclusive means for making state line deliveries, is a donation of public monies to the owners of junior (and therefore worthless) water rights in the PVACD. in contravention of Article IX, Section 14 of the New Mexico Constitution. Movant, and particularly the ISC and SEO. with or without the implied consent of the Legislature, cannot agree by contract to waive the requirements of the New Mexico Constitution and statutes and the Pecos River Compact.. Political pressure brought to bear by a District of wealthy and influential farmers with junior priorities cannot suspend or negate the straightforward mandate of New Mexico law, and the attempt to use this Court's power to cloak that effort with legality is contrary to public policy and law.

     3.     The approval sought by the pending Motion, is outside the jurisdiction of this Court and this Court is without power to grant me relief proposed by me moving parties. The jurisdiction of an adjudication court is expressly limited by New Mexico statutes and case law to the power to join parties and enter decrees as necessary to determine with finality the place, purpose and extent and priority of all water rights in a stream system and to determine to the extent possible the ownership of those water rights, together with the necessary continuing jurisdiction to administer the decrees entered by the adjudication court to give effect to the court's decisions. While the portion of the proposed CID decree dealing with the nature, extent, priority and ownership of the District's surface water rights in the Pecos River may arguably be within jurisdiction of this Court (setting aside for the sake of argument the questions relating to the ownership of the water rights themselves and the power if any, of the CID as an entity to agree to waive enforcement of its members’ valid priorities), the entirety of the Agreement among the moving parties concerns matters outside of and unrelated to the adjudication of water rights of the Pecos River Stream System. The terms of the Agreement constitute and "operating agreement" among the contracting parties, i.e.. the agencies of the State of New Mexico, the U.S. Bureau of Reclamation , the CID and the PVACD, to put into effect a scheme that is intended to simplify the future management of the Pecos River in New Mexico This objective, while arguably laudable, is unrelated to the questions of the nature, extent, purpose, priority an ownership of the water rights of the CID and its members, and therefore fails outside the jurisdiction of this Court- The moving parties are attempting to graft an "operating agreement" onto a CID sub-file order This Court has no power to authorize, let alone command, the implementation of such an "operating agreement/' whether or not it is in the public interest- The Movants should have sought explicit authority from the Legislature for this contract among State agencies, the U.S., and the affected Districts, and such legislation could have been tested as to constitutionality in a conventional manner- This attempt to enact clearly legislative ends by judicial approval of a stipulation for entry of a "Partial Final Decree' in a CID sub-file, including by reference an "operating agreement" that has nothing to do with the adjudication of CID water rights, is an abuse of the Court's jurisdiction.

     4.     The proposed CID Partial Final Decree is invalid because it violates the law of this case. i.e.. Judge Byrd's final decision, holding that the farmer members of the CID are the owners of the water rights put to beneficial use by and through the diversion, storage and delivery works of the CID. The PFD fails to recognize or comply with the decision, and indeed potentially clouds the CID members' title to their surface water rights by appearing to decree not only the total acreage served by the Project, but also its priorities, to the District as an entity despite Judge Byrd's previous and final determination in this case that. the "CID rights" belong to the member farmers. Likewise, provisions of the Agreement (sought to be adopted and approved by reference into the PFD) explicitly purport to waive future priority enforcement of CID rights. against PVACD Junior pumpers and seek Court approval of this waiver. This provision is unlawful and ineffective without the express joinder of the farmer members who own those rights.

     5.     The PFD erroneously fixes the earliest surface water priority of CID members 1888. the correct date is 1887. Likewise, the PFD attempts to impose a combined annual diversion limitation on supplemental wells owned and used by individual CID members; such combined limits cannot be imposed in the CID PFD as the CID has no ownership interest in hose wells. The individual owners of those wells are entitled by due process to an opportunity to establish in their individual sub-files the extent of their rights therein based on beneficial use.

                    Respectfully submitted,

Paul Bloom
WHITE  KOCH KELLY &    McCARTHY PA
Attorney for Tracy/Eddy Farms

WEBMASTERS NOTE:

Judge Byrd's decision is found in Opinion RE Threshold Legal Issue No. 3 filed on November 4, 1997 with the District Court Clerk in Nos. 20294 & 22600 Consolidated.

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