New Mexico Copper Corporation, Turner Ranch Properties and Hillsboro citizen group await imminent Appellate Court decision

by Kathleen Sloan | June 22, 2021
10 min read
View of Copper Flat Mine taken from the summit of Black Peak, looking toward the northeast. A legal battle over whether NMCC has the rights to sufficient water to reopen the mine and process copper ore is now in its seventh year. Photograph by Robert Barnes

The parties involved in a water fight that may determine if the New Mexico Copper Corporation can obtain sufficient water to process ore at the Copper Flat Mine in Sierra County are awaiting an Appellate Court ruling on a lower court’s decision, which could be handed down around the end of this month.

The mine, which is located about six miles east of Hillsboro, off Highway 152, adjoins Ted Turner’s Ladder Ranch and overlooks Animas Creek to the south. It last operated in 1982.

Stakeholders in NMCC’s water acquisition efforts went through four years of legal battle in the Lower Rio Grande River Basin Adjudication Court, overseen by Judge James Wechsler, starting in 2014. On Feb. 28, 2018, Wechsler handed down a ruling that granted NMCC and water-right sellers Harris Gray and William Frost the use of nearly 900 acre feet of water, far less than the nearly 7,500 acre feet a year they claimed were due them.

According to Bureau of Land Management environmental impact statements, the mine needs about 6,100 acre feet a year to operate.

NMCC entered into an option agreement with Gray and Frost around 2010, agreeing to purchase the right to nearly 6,500 acre feet of water a year, to be drawn from four production wells at the mine site. (NMCC also claims the right to more than 1,000 acre feet a year associated with the mine’s 12 subsidiary wells.)

The agreement with Gray and Frost specified there were no guarantees NMCC would be able to exercise the option, for which the company paid $2.5 million. According to Adjudication Court documents, NMCC’s remaining payment to Frost and Gray was $700,000 when the court’s ruling came down in 2018.

NMCC and Gray and Frost appealed Wechsler’s ruling, stating the lower court erred in not awarding them 7,500 acre feet a year.

Turner Ranch Properties appealed Wechsler’s award of 900 acre feet a year to NMCC and Frost and Gray. 

Fourteen individuals in Hillsboro, working in concert, also appealed Wechsler’s award of 900 acre feet a year.

The New Mexico Court of Appeals heard oral arguments presented by the three parties via an internet video conference on April 1. No members of the public or press were allowed to attend the hearing, but an audio recording of the proceedings was posted on the court’s website two days afterward.

Hillsboro resident Max Yeh (who is—full disclosure—president of the Sun’s board of directors) has dedicated thousands of hours to researching and evaluating legal information to aid the Hillsboro stakeholders over the last 10 years. He attended the April 1 hearing online and encapsulated for the Sun the import of the session that took less than two hours:  

“Everything said at the oral arguments depended on one, an enormous amount of factual information (almost 10,000 pages of information) and two, pretty subtle and complex legal reasoning coming out of almost 200 case decisions.” 

Yeh also provided a mini-lesson on how appellate cases are determined:

You must remember that an appeals court does not retry the matter at issue. Its job is very strictly limited to the lower court’s findings of fact and conclusions of law. The arguments are not directed at each other’s position, but both sides are directed at the lower court. The issues are whether as fact finder the lower court found all the facts correctly, whether the lower court applied the right laws with the right understandings to the right facts it found. If the appeals court finds that the lower court had ‘sufficient evidence’ to come to its conclusions and decisions, then an appeals court cannot change the lower court’s decision, even if there is new evidence or even if enough evidence was found by the lower court to come to another decision. So the appeals arguments have to be specifically directed at an articulated end. Each side has to say there was an insufficiency of evidence or there was a misinterpretation of law, or, as we said, the court applied the wrong law to the wrong facts.” 


NMCC and Gray and Frost are represented by Tanya Scott, attorney with Law & Resource Planning Associates, Albuquerque.

The Hillsboro citizens group is represented by Kenneth Dugan of Martin, Dugan and Martin, Carlsbad.

Turner Ranch Properties is represented by Tessa Davidson of Davidson Law Firm, Corrales.

The New Mexico Court of Appeals judges were retired New Mexico Supreme Court Justice Richard Bosson, retired Appellate Court Judge Michael Bustamante and Appellate Court Judge J. Miles Hanisee. Bosson and Bustamante were assigned the case as substitutes for sitting appellate judges who were indisposed. 


The basis of New Mexico and Western water law is “beneficial use,” as stated in New Mexico’s Constitution. No one owns the water, but may use it, with the permission of the state. The right to use water is put at risk if the water is not put to continuous beneficial use. 

The New Mexico Office of the State Engineer, in September 1982, “declared,” or created, the Lower Rio Grande Water Basin, bringing it into its administrative control. The basin extends from Elephant Butte Dam to the borders of Texas and Mexico. Western and New Mexico water case law allow pre-basin water claims that were never used to be used in post-basin times under certain conditions. Claimants must show they notified competing water users that they were pursuing a particular plan to put the water to beneficial use—in this case, to operate a copper mine.

Most of the nearly 7,500 acre feet a year in NMCC’s and Gray and Frost’s claimed water right is water that was never put to use, judging by Copper Flat Mine’s estimates of the capacities of the mine’s four production wells and the 12 subsidiary wells. Most of these wells were drilled in the 1970s.  

The Adjudication Court ruled that the plan to mine at Copper Flat was pursued by previous mine owners before the basin was declared and was terminated before the basin was declared; therefore the claim of nearly 7,500 acre feet a year in pre-basin water right was “extinguished.”

The mine owners at the time used only about 900 acre feet of water for the three months the mine was in operation before the basin was declared. The company then went into default on its loan with the Canadian Imperial Bank, which took over ownership of the mine.

The bank subsequently applied to the OSE to permanently transfer the mine’s claimed water right to wells outside of Las Cruces to be used for a non-mining purpose. The application failed. The Adjudication Court found that the transfer attempt signaled the mine owner’s intent to permanently close the mine.

The bank sold all the mining equipment and reclaimed the land according to Bureau of Land Management requirements. The Adjudication Court found that these actions indicated a permanent abandonment of the plan to mine copper at the site.

The bank then sold the mine’s claimed water rights to Gray and Frost for $20,000 with no guarantees. The Adjudication Court found that the sale separated water right, if any existed, from the land.

Gray and Frost later tried to transfer the water right from the Las Cruces groundwater wells to a surface water lake within a proposed nearby residential development. Although the application was unsuccessful, the Adjudication Court found this to be further evidence that the copper-mining plan had been abandoned, thus extinguishing the pre-basin water right claim to put the water to beneficial use at Copper Flat Mine.

The Adjudication Court ruled NMCC and Gray and Frost had a vested water right of nearly 900 acre feet a year—water used during the three months of copper mining in 1982. The court excused the water’s nonuse during the 30-year period roughly between 1982 and 2010, around the time when NMCC took over ownership of the Copper Flat Mine.

The lower court’s decision was largely based on Gray and Frost’s showing that they had fought a legal battle over water rights for seven of the 30 years with one of the many subsequent Copper Flat Mine owners. Case law requires those seeking to retain rights to water that has not been put to beneficial use to provide specific justifications for not doing so, but the ruling excused the nonuse for vague reasons:

“The economic, financial, and logistical difficulties of CFP [Copper Flat Mine Project] and the legal challenges of Gray and Frost excuse the long period of nonuse of the vested [900-acre-feet-a-year] water rights.”


Tanya Scott, representing NMCC and Gray and Frost, said the Adjudication Court erred in extinguishing her clients’ 7,500 acre feet of pre-basin water right and asked the Appellate Court to reverse the ruling.

Noting that the attempts to transfer the water right didn’t succeed, Scott asserted that, “to this day, the water can only be used for the copper mine.” The subsequent and current owners of the mine have pursued the same plan, with nearly the same footprint, therefore there was no abandonment of the plan, and pre-basin water claims should be awarded, she argued.

Scott pointed out that the Adjudication Court excused about 900 acre feet of water from over 30 years of nonuse because of “legal, economic, financial and logistical difficulties.” These reasons should also excuse the nonuse of the additional water right claimed by her clients.

Judge Bosson asked whether the copper mine could operate with only the right to about 900 acre feet a year, “if we affirm the lower court’s ruling.”

“No,” Scott said. More water is needed and appropriating or leasing water is unlikely to succeed “because people do not want a copper mine in their backyard.” NMCC has applied to the OSE to lease about 2,400 acre feet a year, Scott said, and some 70 parties are protesting the application.


Tessa Davidson, attorney for Turner Ranch Properties, said the Adjudication Court was correct in finding the claim to 7,500 acre feet a year of pre-basin water right was “extinguished.” However, the lower court was incorrect in its ruling that 900 acre feet a year of water right remains.

Citing case law, Davidson said the lower court was required to have NMCC and Gray and Frost give evidence that the reasons they could not put the 900 acre feet to beneficial use for more than 30 years was “beyond their control.”

The Adjudication Court’s decision is “protecting economic interests in water,” Davidson said, giving paper ownership of a water right precedence over the “beneficial use” or “constitutional use” of water.

Davidson asked the Appellate Court to remand the issue of whether her clients have a vested right to 900 acre feet a year back to the Adjudication Court in order to have NMCC and Gray and Frost provide a reason “beyond their control” for more than 30 years of nonuse.


Kenneth Dugan, representing the Hillsboro litigants, agreed with Attorney Davidson that the Adjudication Court was correct in extinguishing the pre-basin water right claims. And he, too, argued that the lower court’s ruling granting rights to 900 acre feet a year was incorrect.

Dugan drew the distinction between owning the water right and fighting to retain ownership, on the one hand, and owning water works and fighting to put the water to beneficial use, on the other.

Gray and Frost did not own water works and could not put the water to beneficial use, Dugan argued, and their long nonuse of the water prohibited other water users from putting it to beneficial use. New Mexico and Western water law do not “allow a dog in the manger,” he stated, using a colorful metaphor for a person who keeps something that he or she does not really need or want so that others may not use or enjoy it.

Gray and Frost were water speculators, Dugan said—that is, water right owners not interested in the beneficial use but only the profitability of water right ownership. Speculating in water for a profit is not allowed by Western water law. Dugan hammered home his dog-in-the-manger metaphor by noting that Gray and Frost fought Hydro Resources—one of Copper Flat Mine’s many owners—in court for seven years, prohibiting them from putting the water to beneficial use.

Dugan asked the Appellate Court to reverse the Adjudication Court decision to award NMCC and Gray and Frost 900 acre feet a year. They had the “burden of proof” to provide a legal excuse for more than 30 years of nonuse of water—and had not.  

Kathleen Sloan is the Sun’s founder and chief reporter. She can be reached at or 575-297-4146.
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Understanding New Mexico's proposed new social studies standards for K-12 students

“The primary purpose of social studies is to help young people develop the ability to make informed and reasoned decisions for the public good as citizens of a culturally diverse, democratic society in an interdependent world.”
—National Council for the Social Studies 

Reader Michael L. Hayes of Las Cruces commented: What impresses me is that both the proposed standards and some of the criticisms of them are equally grotesque. I make this bold statement on the basis of my experience as a peripatetic high school and college English teacher for 45 years in many states with many students differing in race, religion, gender and socioeconomic background, and as a civic activist (PTA) in public education (My career, however, was as an independent consultant mainly in defense, energy and the environment.)

The proposed social studies standards are conceptually and instructionally flawed. For starters, a “performance standard” is not a standard at all; it is a task. Asking someone to explain something is not unlike asking someone to water the lawn. Nothing measures the performance, but without a measure, there is no standard. The teacher’s subjective judgment will be all that matters, and almost anything will count as satisfying a “performance standard,” even just trying. Students will be left to wonder “what is on the teacher’s mind?” or “have I sucked up enough.”

Four other quick criticisms of the performance standards. One, they are nearly unintelligible because they are written in jargon. PED’s use of jargon in a document intended for the public is worrisome. Bureaucrats often use jargon to confuse or conceal something uninformed, wrong or unworthy. As a result, most parents, some school board members and more than a few teachers do not understand them.

Two, the performance standards are so vague that they fail to define the education which teachers are supposed to teach, students are supposed to learn, and parents are supposed to understand. PED does not define words like “explain” or “describe” so that teachers can apply “standards” consistently and fairly. The standards do not indicate what teachers are supposed to know in order to teach or specify what students are supposed to learn. Supervisors cannot know whether teachers are teaching social studies well or poorly. The standards are so vague that the public, especially parents or guardians, cannot know the content of public education.

Three, many performance standards are simply unrealistic, especially at grade level. Under “Ethnic, Cultural and Identity Performance Standards”; then under “Diversity and Identity”; then under “Kindergarten,” one such standard is: “Identify how their family does things both the same as and different from how other people do things.” Do six-year-olds know how other people do things? Do they know whether these things are relevant to diversity and identity? Or another standard: “Describe their family history, culture, and past to current contributions of people in their main identity groups.” (A proficient writer would have hyphenated the compound adjective to avoid confusing the reader.) Do six-year-olds know so much about these things in relation to their “identity group”? Since teachers obviously do not teach them about these other people and have not taught them about these groups, why are these and similar items in the curriculum; or do teachers assign them to go home and collect this information?

Point four follows from “three”; some information relevant to some performance measures requires a disclosure of personal or family matters. The younger the students, the easier it is for teachers to invade their privacy and not only their privacy, but also the privacy of their parents or guardians, or neighbors, who may never be aware of these disclosures or not become aware of them until afterward. PED has no right to design a curriculum which requires teachers to ask students for information about themselves, parents or guardians, or neighbors, or puts teachers on the spot if the disclosures reveal criminal conduct. (Bill says Jeff’s father plays games in bed with his daughter. Lila says Angelo’s mother gives herself shots in the arm.) Since teacher-student communications have no legal protection to ensure privacy, those disclosures may become public accidentally or deliberately. The effect of these proposal standards is to turn New Mexico schools and teachers into investigative agents of the state and students into little informants or spies.

This PED proposal for social studies standards is a travesty of education despite its appeals to purportedly enlightened principles. It constitutes a clear and present danger to individual liberty and civil liberties. It should be repudiated; its development, investigated; its PED perpetrators, dismissed. No state curriculum should encourage or require the disclosure of private personal information.

I am equally outraged by the comments of some of T or C’s school board members: Christine LaFont and Julianne Stroup, two white Christian women, who belong to one of the larger minorities in America and assume white and Christian privileges. In different terms but for essentially the same reason, both oppose an education which includes lessons about historical events and trends, and social movements and developments, of other minorities. They object to the proposal for the new social studies standards because of its emphasis on individual and group identities not white or Christian. I am not going to reply with specific objections; they are too numerous and too pointed.

Ms. LaFont urges: “It’s better to address what’s similar with all Americans. It’s not good to differentiate.” Ms. Stroup adds: “Our country is not a racist country. We have to teach to respect each other. We have civil rights laws that protect everyone from discrimination. We need to teach civics, love and respect. We need to teach how to be color blind.”

Their desires for unity and homogeneity, and for mutual respect, are a contradiction and an impossibility. Aside from a shared citizenship, which implies acceptance of the Constitution, the rule of law and equality under the law, little else defines Americans. We are additionally defined by our race, religion, national origin, etc. So mutual respect requires individuals to respect others different from themselves. Disrespect desires blacks, Jews or Palestinians to assimilate or to suppress or conceal racial, religious or national origin aspects of their identity. The only people who want erasure of nonwhite, non-Christian, non-American origin aspects of identity are bigots. Ms. LaFont and Ms. Stroud want standards which, by stressing similarities and eliding differences, desire the erasure of such aspects. What they want will result in a social studies curriculum that enables white, Christian, native-born children to grow up to be bigots and all others to be their victims. This would be the academic equivalent of ethnic cleansing.


This postmortem of a case involving a 75-year-old women who went missing from her home in Hillsboro last September sheds light on the bounds of law enforcement’s capacity to respond, especially in large rural jurisdictions such as Sierra County, and underscores the critical role the public, as well as concerned family and friends, can play in assisting a missing person’s search.

Reader Jane Debrott of Hillsboro commented: Thank you for your article on the tragic loss of Betsey. I am a resident of Hillsboro, a friend of Rick and Betsey, and a member of H.E.L.P. The thing that most distresses me now, is the emphasis on Rick’s mis-naming of the color of their car. I fear that this fact will cause Rick to feel that if he had only gotten the facts right, Betsey may have been rescued before it was too late. The incident was a series of unavoidable events, out of everyone’s control, and we will never know what place the correct color of her car may have had in the outcome. It breaks my heart to think that Rick has had one more thing added to his “what ifs” concerning this incident.

Diana Tittle responded: Dear Jane, the Sun undertook this investigation at the request of a Hillsboro resident concerned about the town’s inability to mount a prompt, coordinated response to the disappearance of a neighbor. From the beginning, I shared your concern about how our findings might affect Betsy’s family and friends. After I completed my research and began writing, I weighed each detail I eventually chose to include against my desire to cause no pain and the public’s right to know about the strengths and limitations of law enforcement’s response and the public’s need to know about how to be of meaningful assistance.

There was information I withheld about the state police investigation and the recovery. But I decided to include the issue of the car’s color because the individuals who spotted Betsy’s car emphasized how its color had been key to their identification of it as the vehicle described in Betsy’s Silver Alert. Because the misinformation was corrected within a couple of hours, I also included in this story the following editorial comment meant to put the error in perspective: “The fact that law enforcement throughout the state was on the lookout in the crucial early hours after Betsy’s disappearance for an elderly woman driving a “light blue” instead of a “silver” Accord would, in retrospect, likely not have changed the outcome of the search” [emphasis added].

I would also point to the story’s overarching conclusion about the inadvisability of assigning blame for what happened: “In this case, a perfect storm of unfortunate circumstances, many of them beyond human control, hindered the search that it would fall to Hamilton’s department to lead.”

It is my hope that any pain caused by my reporting will eventually be outweighed by its contribution to a better community understanding of what it will take in the future to mount a successful missing person’s search in rural Sierra County.


BLM’s District Manager describes differences in Draft and Final Environmental Impact Statements on New Mexico Copper Corporation
by Kathleen Sloan | May 16, 2020

​The final and draft environmental impact statements prepared by the Bureau of Land Management in its assessment of the New Mexico Copper Corporation stack more…

New Mexico Copper Corporation is sent to the back of the line by Mining and Minerals Division
by Kathleen Sloan | April 6, 2020

The State’s Mining and Minerals Division has such strong doubts the New Mexico Copper Corporation won’t get the water rights needed to operate the mine,…

New Mexico Copper Corporation shareholder applying for 2,400 acre feet a year water use at mine
by Kathleen Sloan | April 25, 2020

The New Mexico Copper Corporation has all the approvals it needs to start mining at Copper Flat Mine, located outside of Hillsboro, but it lacks…

2 thoughts on “New Mexico Copper Corporation, Turner Ranch Properties and Hillsboro citizen group await imminent Appellate Court decision”

  1. I grow weary of listening to the finer and finer legal points of the argument over water for a copper mine. THERE IS NO EFFING WATER!!! Has anyone been paying attention? Has anyone looked at the level of water in the Elephant Butte reservoir or heard, perchance, any discussion of the worst drought in a couple thousand years?? It matters not whether you “believe” in climate change or not. THERE IS NO WATER!! If there were water on the surface that would indicate that the underground aquifers are fully charged. If there is little water on the surface, it means that the underground reservoir is also getting short of water.

    Water is life first and foremost. We citizens need to drink it to continue to live here. We need to continue its historical use for growing traditional crops that we eat and export. Its use for marginal, speculative business enterprises comes in a not even close second, if it should be considered at all, until there is a guaranteed amount sufficient for the immediate use of the citizens living here. Bending laws and historical evidence to revive already failed enterprises is patently stupid, dangerous and, essentially, immoral.

  2. Le Roy Henderson

    Very good article! This has some information not previously known to the public. When I worked at the mine for a short period several years ago, I was in a position to read some of the correspondences between [then owner] Quintana Minerals and their lawyers in Texas. Water right ownership was always a question in getting the mine operational. I also read over the water reports on the capabilities of the four wells—what I saw was that the main reason for Quintana’s closing down was the inability to provide enough water to proceed. Low-grade ore as is found at Copper Flat takes a lot of water.

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