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?

© Robert Barnes 2018