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UPDATE: Adjudication of Copper Flat Mine’s water rights scheduled to begin again

by Daniel Lorimier | March 12, 2021
6 min read
Aerial view of Copper Flat Mine circa 1982
Aerial view of Copper Flat Mine circa 1982. To restart even a minimal mining operation, the New Mexico Copper Corporation must validate rights to at least 3,800 acre-feet per year. Source: NMCC

The dispute over the proposed reopening of Copper Flat Mine off Highway 152 between Caballo and Hillsboro that has been raging for a decade will again be taken up in court. The New Mexico Court of Appeals in Santa Fe will hear opening oral arguments on April 1 at 10 a.m. on how much, if any, acre-feet the mine can rightfully claim.

The New Mexico Copper Corporation acquired Copper Flat, an open-pit mine abandoned after only a few months of operation in the 1980s, in 2011. To begin minimal copper-mining operations, NMCC must hold the rights to pump about 3,800 acre-feet of ground water a year. To maximize production, it will need to withdraw about 6,100 afy (acre-feet per year). Operations are projected to last for 10 to 12 years before the mine’s copper-porphyry deposits are depleted.

NMCC’s claim that it had acquired 10,000 afy was contested in the Adjudication Court for the Lower Rio Grande Basin in 2014. Fifteen Hillsboro residents, Turner Ranch Properties (whose Ladder Ranch abuts Copper Flat Mine), the New Mexico Pecan Growers and the Hillsboro Mutual Domestic Water Consumers Association joined with the Office of the State Engineer to question the validity of the claimed rights.

The battle over what was in Sierra County’s best economic interests was now officially joined.

The Sierra County Commission and the Truth or Consequences City Commission had passed resolutions of support for the mine in 2012 because it promised to create hundreds of good-paying jobs, however short-lived. (T or C withdrew its support in 2015, around the time NMCC cut a deal with the Jicarilla Apache Nation in northwestern New Mexico to lease 3,000 afy in exchange for giving hiring preference to tribal members. The county commission reaffirmed its faith in the project’s economic development potential in a 2019 resolution.)

Grass-roots opponents pointed out that public and private investments in roads, businesses and services created and maintained to support the mine’s operations and employees would be undermined if Copper Flat repeatedly opened and closed due to fluctuations in the price of copper; they might be lost altogether when the mine closed.

The Hillsboro and other claimants’ joint motion to the Adjudication Court was prompted by an even more profound concern. If NMCC’s water right claims were upheld, it would pave the way for the largest annual withdrawal of ground water in Sierra County. The water the mine intended to pump each year from its well field along Highway 152 above Animas Creek far exceeded the annual consumption of Truth or Consequences and Elephant Butte combined. The claimants feared Hillsboro’s water system, as well as hundreds of private wells supplying homes, ranches and farms along Animas Creek, could be severely impacted. They also recognized that the mine’s plans to store after-mining wastewater in a huge lagoon behind an earthworks dam posed a long-term threat to the quality of the ground water throughout the county and beyond. To add insult to injury, any water rights NMCC held would depart the county with it after mining operations ended, hampering future development.

After four years of court proceedings, the Adjudication Court ruled in February 2018 that NMCC had rights to about 900 afy.

NMCC appealed the decision, saying the court was wrong and all its rights were valid. The Hillsboro claimants and Turner Ranch Properties cross-appealed, saying that the court was wrong and all the rights were invalid. The State Engineer supported the court’s decision.

A panel of three Court of Appeals judges—Richard Bosson, Michael Bustamante and J. Miles Hanisee—will determine whether the Adjudication Court’s ruling should be upheld. But this decision is not likely to end the dispute. If the Court of Appeals invalidates the mine’s rights altogether or upholds its rights only to 900 afy, NMCC may have other means of securing the minimum afy it needs to reopen the mine.

In 2020, NMCC leased water rights sufficient to start minimal operations from an investment group with land holdings in Santa Theresa, New Mexico. The company has applied to the Office of the State Engineer to transfer those rights to its wells along Highway 152.

The transfer has been protested by over 50 neighboring water users as detrimental to their wells. The local protestants have been joined by the Interstate Stream Commission on behalf of the state’s responsibility for river water; the Elephant Butte Irrigation District on behalf of the farmers of southern New Mexico; the Rio Grande Compact Commission on behalf of the state’s agreement with Texas and Mexico to deliver water according to the interstate compact; the Camino Real Regional Utility Authority and other entities in Sunland Park and Santa Teresa that fear the loss of water needed for borderland development; and the Rio Grande Chapter of the Sierra Club, which is concerned about the environmental and biodiversity losses in the Copper Flat area and along the river that could be caused by NMCC’s mining.

OSE’s scheduling of a public hearing on the transfer is still pending.

The central issue before the Adjudication Court and the upcoming Court of Appeals case is New Mexico water law: that is, whether water rights unused for over 30 years are still valid, or whether unused water rights must return to the people of New Mexico to be available for other purposes, as specified in the New Mexico Constitution.

In contrast, the administrative hearing on the protested transfer of water rights will be decided on the hydrology of the area. The two sides will have to show whether NMCC’s pumping from their production wells will or will not significantly reduce water which the protestants have the right to use. The protestants are currently raising monies to retain the services of a hydrologist.

The needed mining permits depend on these water rights determinations. NMCC has obtained provisional approval from the U.S Bureau of Land Management for its mining plan, contingent on finding sufficient water. The State of New Mexico has not granted NMCC permission to proceed with mining, holding the company responsible for meeting the same provisions on which the BLM conditioned its permit.

When asked last year how long NMCC can take to acquire sufficient water rights to operate, Jerry Schoeppner, mining and minerals director of the state’s Energy, Minerals and Natural Resources Department, responded in an email: “There is no deadline by either statute or regulation for NM Copper Corporation to acquire the water rights. However, under the NM Mining Act the agency has discretion to deny an application in the event that the applicant is unable to proceed after reasonable notice of the intent to deny. Any such denial could be appealed by the applicant to the Mining Commission.”

In summary, the future of the Copper Flat Mine remains cloudy. NMCC is a wholly owned subsidiary of the Canadian-based Themac Resources Group, which is controlled by a wealthy Australian family. The Maloneys have poured an estimated $80 million into the project to date. The opposition is equally committed to fight it out on as many fronts as are still open, for as long as it takes to achieve a decisive verdict.

 

 

author

Daniel Lorimier is a 45-year resident of Sierra County. He served as the state lobbyist for the Rio Grande Chapter of the Sierra Club for 14 years, working to advance the Sierra Club’s environmental priorities every legislative session from 2005 to 2018. Dan lived in Santa Fe during the sessions and returned home to Sierra County the rest of the year.

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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.

H.E.L.P.

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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