Hot Springs case nearing hearing—part 1 of a series: Introducing the parties and ​EBID argument

by Kathleen Sloan | March 28, 2020
4 min read
​The Riverbend Hot Springs applied for a new appropriation of 400 acre feet a year of hot-springs water for commercial use three years ago—protested by several parties—and a public hearing on the matter is finally within sight. 

The Office of the State Engineer Hearings Examiner assigned to the case is Uday V. Joshi. He will likely hold the public hearing in Truth or Consequences where most of the protestants and the applicant reside. 

Holding up the works is an extensive pump test the Riverbend was supposed to perform by Feb. 19, extended to March 24, but still no pump test has been scheduled. In addition, the Riverbend was also supposed to provide a “stipulated schedule” or hearing date agreed to by all parties. That was not done either. 

The Riverbend is owned by the Foerstner family. Lee Foerstner filed the application April 2017 under “Cloverleaf Trust Organization,” represented by Attorney Joshua Smith of Watson Smith, Mesilla Park. 

Foerstner was asked but said he couldn’t comment on the pending hearing or issues. 

Three protestants represented by Attorney Peter Thomas White of Santa Fe are: 
William Martin, trustee for the Martin Family Trust, doing business as the Artesian Bath House; Meleasa Malzahn, president of La Paloma Hot Springs and Spa and the City of Truth or Consequences. 

A fourth protestant, represented by Attorney Tessa Davidson of Davidson Law Firm of Corrales, is T or C Properties, which owns the Sierra Grande Lodge & Spa. 

A fifth protestant, represented by Attorney Samantha Barncastle of Barncastle Law Firm in Las Cruces, is the Elephant Butte Irrigation District. 

A sixth protestant, Kathleen Clark, owns the Charles Motel & Hot Springs. She is representing herself as a protestant and has not submitted any arguments. 

Sid Bryan, owner of the Pelican Spa, is also representing himself as a protestant and has not submitted any arguments.  

Representing the Office of the State Engineer’s Water Rights Division are Attorneys Maureen Dolan and Owen Kellum, who are part of the OSE Administrative Litigation Unit.  

Since the application is complex, the Sierra County Sun will do a series of articles on the matter, trying to keep them at 600 words for ease of reading and understanding. 

It is an adversarial matter and the complexity does not allow all sides to be presented in one article. The Sun therefore asks readers to consider the articles in total in weighing the arguments. 

All new water appropriations are granted or denied based on whether the water is already appropriated and if it will impair senior water right holders. 

The Elephant Butte Irrigation District may have the strongest argument among the protestants that Cloverleaf’s application should be denied. It argues it is responsible for “the delivery of Rio Grande Project Water.” 

In its capacity as project-water deliverer, EBID flatly states there is no new water right to be had connected to the Lower Rio Grande aquifer, of which the Hot Springs Underground Water Basin is a part. 

“The United States, on behalf of the beneficiaries of the Rio Grande Project, made application in the early 20th Century to appropriate all of the then-unappropriated water in the Rio Grande from the Elephant Butte Reservoir to the New Mexico-Texas state line, therefore there is no unappropriated water in the Rio Grande.” 

“The Hot Springs Underground Water Basin is inextricably connected to surface flows of the Rio Grande,” EBID goes on to argue, therefore the Cloverleaf appropriation “may” impair groundwater and Project water. 

In addition, the EBID states it owns 9,500 acre feet a year of Lower Rio Grande underground water rights, which “may” also be impaired by the new Cloverleaf diversion. 

“There is no unappropriated groundwater available for appropriation in the Hot Springs Underground Water Basin,” the EBID states, and asks the OSE to therefore “deny the application.” 

EBID also argues, along with the Artesian, the Palomas, the City and the Sierra Grande that the Cloverleaf application is “flawed on its face” and should be rejected out of hand. It states zero water will be consumed, while also applying for 400 acre feet a year of beneficial use. 

This zero use is possible because all the water will be returned to the Rio Grande, Cloverleaf argues, which is the natural outflow point of the hot springs basin. About 2,000 acre feet a year of hot springs water outflows into the Rio Grande currently, Cloverleaf notes.

EBID points out Cloverleaf’s own geologist, James Witcher, estimates half an acre foot a year will evaporate from pool surfaces, which is not nothing, making the application flawed. 

The Artesian, Palomas and City argue that since none of the water will be returned to the hot springs aquifer, the consumptive use is “100 percent,” not zero. 

The Sierra Grande argument is similar, but doesn’t go as far. It states that the application is fatally flawed since it “gives no showing” of how 400 acre feet a year pulled out of the hot springs aquifer “will result in a zero net depletion of water in the Hot Springs Basin.” 

OSE Hearing Examiner Joshi refused to reject the application as flawed, ruling in December 2019 that Cloverleaf’s claim of zero consumptive use is an assertion that will have to be judged on its merits during the hearing.  

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.

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