Blog: The Range

Copper Flat Water Rights Determined - Round One

Judge James J. Wechsler has reached a decision in the water rights case involving the New Mexico Copper Corporation (NMCC), the Office of the State Engineer, Turner Ranch Properties, and several other parties from Hillsboro.  The Judge’s findings of "Fact and Conclusions of Law” are found at this link.

Judge Wechsler found that the vast majority of the water rights claimed by NMCC were not valid.  NMCC claimed a vested water right of 1,963 afy and an inchoate water right of 7,481 afy or 9,444 annual acre feet (3,077,340,891 gallons per year).  (Inchoate rights “are incomplete water rights that had not vested at the time the OSE declared the basin because, although the appropriator had begun development of the rights, the water had not been put to beneficial use.”  Such rights are associated with the grandfathered rights associated with the Mendenhall case and are called Mendenhall rights.  If you are particularly interested in these rights please see pp. 63-65 of the decision.)

The extraction of three billion+ gallons of water a year would have a substantial negative affect on the integrity of the water system in this area but that was not the legal question before the judge.  His determination dealt only with the question of what the valid water rights of NMCC were, if any.  He determined that the inchoate rights were extinguished; that there was a combined water right from some wells (861.84 afy); and that there were 34.45 annual acre feet of rights associated with the open pit (designated as LRG-4652-S-17) at the Copper Flat Mine.  34.45 afy is the amount of water which evaporates from the pit each year.

Judge Wechsler found that the Copper Flat Mine was formally abandoned (not mothballed) by February 5, 1987.  The vast majority of water rights currently claimed by NMCC have not put to beneficial use since that time.  “Unappropriated surface water and groundwater belong to the people of New Mexico and are subject to beneficial use in accordance with New Mexico law.”  He found that the Hillsboro Claimants in the case and Turner Ranch Properties did not “meet their burden to prove by clear and convincing evidence that either CFP or Frost and Gray abandoned the right associated with” (some of) "the production wells” and have a right to 861.84 afy.  The “claimants have established abandonment by clear and convincing evidence” in the case of other wells.

Wechsler’s decision is well written and provides the most succinct (at 73 double spaced pages) description of the mining activities at the Copper Flat mine site that I have seen and is well worth the time to read. 

Some of the The Things Which May Happen Next

It is not known if any of the parties will appeal the decision, although there appears to be grounds for such action.  For instance, the 861.84 afy recognized by Wechsler has not been used since1982 and the recognition of that claim is the longest period of excused non-use in case history.

If Themac continues to pursue the idea of a Copper Flat Mine, it will have to buy or lease water rights from elsewhere to use at the Copper Flat site.  That will necessitate an application to the NM State Engineer for permission to transfer the place of use of those rights from elsewhere to the Copper Flat site.  A notice of Public Notice of such application will need to be published at that time.  Parties wishing to challenge such a transfer will need to request a public hearing.  

Note that the water is not transferred (shipped) from some location to the Copper Flat mine by this action.  The rights to water are transferred.  The water would be pumped from wells near the junction of NM-152 and I-25.  Arguments have been made that pumping water from that location will diminish New Mexico’s ability to comply with the Rio Grande Compact.  For a summary of the issues associated with the Rio Grande Compact please see an article entitled “In Deep Water: US Supreme Court to decide how states hare the drying Rio Grande, and New Mexico could lose big” by Laura Paskus.

There is no doubt that increased usage of water from the aquifers by urban areas, farming, and mining is depleting the ground water supply available to everyone.  It is also true that human-induced climate change and the continued drought that it brings to the basin means that the aquifers are not being replenished at their  historical rates.  Bad times are on the horizon - why make them worse?

September Mimbres Messenger

As always, the September issue of the Mimbres Messenger is full of well-written articles, lots of information, and stories of local interest.  This month’s issue has a story about how de Kooning’s painting, “Woman-Ochre” was stolen from the University of Arizona and recovered thirty-two years later by Buck Burns, Rick Johnson, and David Van Auker who run the Manzanita Ridge store in Silver City.  It is a great story, involving theft of a major art work (valued at $400,000 when it was stolen - another painting in the same series sold for $137,500,000 in 2006), great sleuthing by several people in Silver City, and the unselfish efforts of the three gentlemen mentioned above.  If you doubt the human spirit, as I often do, this is a must read.


TWELTH ANNUAL MIMBRES VALLEY HARVEST FESTIVAL:  The Harvest Festival is the premier home-grown event in the Black Range and this year it will occur on September 30.  It returns to its usual venue at the San Lorenzo Elementary School.  The September issue of the Mimbres Messenger is full of information about this year’s event.  The activities include the Mimbres Health Fair (its 10th year at the Festival).  Last year more than 250 people received healthcare screenings at the Health Fair.  The Health Fair has all sorts of screenings and even free Flu shots provided by Walgreens (see page 5 of the Mimbres Messenger for more).  NMSU will hold a Bug/Weed/Plant Clinic at the Festival, there is the usual great food, pie contest, raffles, many craft vendors, harvested goods from the local farmers, a silent auction, two bands for musical entertainment, a horseshoe tournament, prize horses can be seen, and lots more.


Hillsboro Community Center

The Hillsboro Community Center now has a website, see:  Hillsboro Community Center.  The site contains information about upcoming events, a mission statement, donation & fee schedule, and contact and administrative information.  Apparently, the HCC also maintains a facebook page.  

Our Upcoming Events page includes only those events about which we receive information in a timely fashion.  Since we no longer perform outreach, seeking information about events we become aware of, it is always best to go to the source (in this case the HCC sites linked to above) as a matter of course.

The More Things Stay The Same

The more things change, the more they stay the same…….Things are more like today than they have ever been….

Two messages in today’s post.  Firstly, welcome to Black Range 3, a site which covers the human culture of the Black Range in southwestern New Mexico.  As such it is an addendum to that topic as it was covered in the original Black Range website.  

Given its focus on the human culture of the Range this site will sometimes announce upcoming events which may be of interest to those in the Range and nearby environs.  The listing of events is not likely to be comprehensive. We do not do outreach, if you wish to have notice of your events published in advance and they are of common interest I will do my best to accommodate you.

The second message is about history and the fact that the “common truth” is often not.  When I first moved to Hillsboro there were lots of stories about the legacy of Kingston and Hillsboro, many have proven false with just a bit of research and thought. Every place has its “tales” and we have our share of them.  I have no problem with “tales” as long as there is an understanding that is what they are.  Aesop's Fables are obviously tales and obviously have instructed people for hundreds and hundreds of years.  Likewise, the tales about Mark Twain visiting Kingston and basing “Roughing It” on that experience is a great tale about boosterism, a tradition that continues on sites like  Nothing wrong with boosterism, it was a big part of the mining history of the Black Range. (For those who are wondering, Roughing It was published a full decade before Kingston was founded - a very simple thing to ferret out, if you are really interested in fact and not tales.)

Roughing It

On this site we will always search for the fact, sometimes that is hard, sometimes fact is lost in history and all that is left is conjecture.  Regardless of the effort we will always provide our assessment of the veracity of historical statements - often with “got me”.

For example, I have long thought that it was Eisenhower who made the original quote about “Things are more like they are now than they have ever been”.  I have heard that from many sources, including at a concert by “The Association” ages ago.  Turns out that the first (known) time that it appeared in print was in 1948, in a real estate ad.  It was not credited to Eisenhower until the early 1970’s and there is no known original reference of him saying it.  So, did he say it first?  Probably not…but maybe…certainly not enough evidence to state it as fact.

To put it another way, the movie “The Man Who Shot Liberty Valance” is probably best known for this exchange:

Ransom Stoddard: You're not going to use the story, Mr. Scott? 

Maxwell Scott: No, sir. This is the West, sir. When the legend becomes fact, print the legend.

We will gladly print the legend - but tell you it is a legend.

© Robert Barnes 2017-2018