Water rights are only holdup in New Mexico Copper Corporation’s start-up of mining operations

by Kathleen Sloan | May 9, 2020
8 min read
​The New Mexico Copper Corporation, owned by Themac Resources Group, an Australian-owned company based in Canada, has been trying to open the Copper Flat Mine since 2010. It has the government approvals it needs, but what it lacks is a deal-killer: Water. 

Putting water to beneficial use is the cornerstone of water law, as enshrined in the New Mexico Constitution, and NMCC has 37 years of non-use it must explain in order to keep the water it’s claiming. 

The water rights the mine is seeking have been tangled up in the state’s water rights adjudication court since 2014. The Third Judicial District Court is handling adjudication for the Lower Rio Grande River Basin, in which the mine is located.  

The New Mexico Courts website describes adjudication as, “a legal proceeding to determine the priority, amount of water and other elements of each water right in the Lower Rio Grande River Basin.” 

The Lower Rio Grande River Basin was declared by the state in September 1982 and adjudication began in 1996. It will be many years before adjudication is complete. 

“Any water right claimant in the basin may object to the water right of another claimant,” the court website states.

In the case of New Mexico Copper Corporation, it declared 7,578 acre feet a year of ground water with the Office of the State Engineer in 2011. NMCC was in the process of purchasing, through an option agreement, 6,462 acre feet a year from William Frost and Harris Gray for $1.5 million, which it completed in recent years. That amount was the estimated maximum of “four production wells” on the mine site. NMCC also declared 1,116 acre feet a year of ground water from 17 “auxiliary wells” that are onsite, also based on an estimate of their maximum yearly production. 

In 2014, Lower Rio Grande River Basin claimants filed a joint motion asking the adjudication court to make NMCC’s and Frost and Gray’s water claims a “stream system issue,” as allowed under a court rule. The claimants were 15 Hillsboro residents, Tuner Ranch Properties, the New Mexico Pecan Growers and the Hillsboro Mutual Domestic Water Consumers Association.

The adjudication court responded by ordering an “expedited inter se” proceeding to determine NMCC’s and Frost and Gray’s water rights. Usually the adjudication court works out basin-wide issues with the state and then goes into “inter se” cases or objections among water claimants within the basin. In this case, the State’s arguments, as presented by the Office of the State Engineer, as well as the objecting claimants’ arguments would be heard together to determine NMCC’s and Frost and Gray’s water rights. 

After four years of court proceedings, District Court Judge James Wechsler ruled Feb. 28, 2018 that New Mexico Copper Corporation and Frost and Gray have about 900 acre feet of water a year. 

The mine needs to withdraw about 6,100 acre feet a year of ground water to mine at the level it is proposing. To put that water use in scale, it’s about three times what Silver City uses at 2,270 acre feet a year, with a population of nearly 9,700 people. 

NMCC and Frost and Gray appealed the adjudication court’s decision, as did the Hillsboro claimants and Turner Ranch Properties. For a year and a half briefs and answers have been submitted. At this point the parties await the assignment of three Santa Fe appellate judges to preside over the case. 

In the interest of simplification and brevity, this article will concentrate on adjudication-court errors NMCC and Frost and Gray claim in their appeal and Hillsboro’s answer to their arguments, which capture the core issues. 

Most of NMCC and Frost and Gray’s claims of court errors center on the adjudication court’s rejection of their argument that the “Mendenhall Doctrine” applies to the case. 

Mendenhall deals with pre-basin-declaration water use. All of the wells at Copper Flat Mine were drilled before the Office of the State Engineer declared the Lower Rio Grande River Basin in September 1982. 

Mendenhall is meant to protect pre-basin water users’ investments, to allow them to complete projects begun before the basin was declared.  

Under Mendenhall, to gain the privilege of continuing to develop water use post-basin declaration, all the pre-basin and post-basin water claimants must show due diligence in using the water for the original project, Copper Flat Mine in this case. If the chain of diligence is broken, the water may revert back to the original owners, the people of New Mexico, to ensure there are no water hoarders or water speculators and all water is put to beneficial use, according to the argument developed by Hillsboro. 

The only excuses for not putting water to beneficial use are circumstances beyond the water claimant’s control. 

The adjudication court found that Menden hall did not apply because the mine project was developed and then abandoned at the end of seven years, which occurred before the water basin was declared. 

One of the first owners, Copper Flat Partners, started drilling production wells for mining in 1975, the beginning of the project. The only time it used water for mining was over four months ending July 1982, using about 900 acre feet. The company then abandoned the project and its creditor, a Canadian bank, took over the property and water-use claims. 

No water for the mining project has since been put to beneficial use in the 37 years following.

NMCC and Frost and Gray insist Mendenhall does apply, that the mine owners have exercised due diligence but have been stymied by permitting processes, the fluctuations of the world copper market and the time needed to get a mine into operation. 

They claim the adjudication court should have focused on Copper Flat Partners’ and the bank’s sale of the water to Frost and Gray, who always “intended” to use the water for mining. Frost and Gray bought the 6,462 acre feet claimed for the four production wells in 1987 for $20,000, with no guarantee of water rights. The sale did not include the wells.  

Without much explanation, the court excused Frost and Gray for not putting the water to beneficial use, evidently accepting evidence they had been tied up in court for seven of the 32 years of ownership. Legal and “logistical” difficulties were recognized as beyond their control. The court found Frost and Gray owned about 900 acre feet a year of the 6,462 acre feet claimed, because it had been put to beneficial use by a prior owner. 

The remaining nearly 5,600 acre feet a year of water associated with the four production wells were deemed “extinguished” by the court. The water had not been put to beneficial use and was never intended to be used for mining (the original project) in the future.

The court based this finding on factual evidence. Copper Flat Partners and the bank sold all the equipment, took down all the buildings, and only left the underground pipes because they were asked not to disturb the earth by the Bureau of Land Management. As part of the BLM reclamation process, Copper Flat Partners and the bank advertised the water claim could not be “economically” used at the site.  They then tried to sell the water claim to the City of Las Cruces, submitting an application to the Office of the State Engineer for the water’s change of use and location. The city declined, but the adjudication court said the application indicated lack of due diligence. 

NMCC and Gray and Frost say the court erred in finding a creditor—the bank—can sever the right to develop water from subsequent owners under Mendenhall. They also argue the water right claimed was not recognized by the state and couldn’t be transferred legally, therefore the application should be deemed a “legal nullity,” and “as if it never happened.” 

Hillsboro answered Mendenhall does not apply, the beginning and end of the mining project predate the declaration of the water basin. 

In addition, the appellate court’s level of review, Hillsboro points out, is whether the evidence is sufficient to support the conclusions of the lower court, not whether it should have come to a different conclusion, and there is plenty of evidence. 

Hillsboro’s answer to NMCC also alludes to its argument in its own appeal of the adjudication court’s decision. It argues Judge Wechsler was wrong to assume Copper Flat Partners had any water rights to sell Frost and Gray in 1987. By then it had been five years since the mine used 900 acre feet of water. The right to claim past beneficial use, let alone develop more water use was “extinguished,” Hillsboro says, when Copper Flat Partners rolled up the carpet for mining at that location. 

The adjudication court also found the 1,116 acre feet a year associated with the 17 auxiliary wells were abandoned because no water had been put to beneficial use since the early 1980s and that use didn’t relate to mining. 

NMCC and Gray and Frost argue the adjudication court erred in finding abandonment because it put up no evidence to prove the intent to abandon and intent is a necessary legal component. 

Hillsboro answers that after a “reasonable” time of no beneficial use, usually four years, the burden of proof shifts to the claimant, NMCC and Gray and Frost. The only evidence they put up was declaring the wells as auxiliary to the production wells, a paper claim that does not overcome the actual 40 or so years of non-use. 

If the appellate court finds NMCC and Gray and Frost have any vested water rights, Hillsboro argues, it would “open wide the door to recognizing the unfulfilled dreams of all pre-basin water project failures,” with unused or abandoned water as still viable for appropriation. Such a decision, “would damage all water administration in the state of New Mexico and make a mockery of the adjudication process.” 

Kathleen Sloan is the Sun’s founder and chief reporter. She can be reached at kathleen.sloan@gmail.com 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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