Editor's Note: This article will conclude the business portion of the Jan. 27, Gila/San Francisco Water Commission special meeting.

By Mary Alice Murphy

At the end of public comment, at which several people spoke against what the commission is attempting to accomplish, Gila/San Francisco Water Commission Chairman Anthony Gutierrez said a lot of questions were asked.

"We treat those questions as public comment and do not have to answer them," Gutierrez said. "Allyson (Siwik, Gila Conservation Coalition executive director) asked questions. In my opinion, we have answered them during our discussions. We have no contracts with G. K. Baum. This is a special meeting. We will approve the regular meeting minutes at the next regular meeting. Yes, we are requesting and think we have the right and duty to be the CAP (Central Arizona Project) Entity. We will answer other questions as they arise as part of our work."

Gutierrez said he would entertain a motion to approve Resolution 15-01-27-1, (as it was noted on the agenda, but not on the copy of the resolution) which is an amendment to the Gila/San Francisco Water Commission joint-powers agreement, requiring two-thirds of the commission for approval. Alex Thal, representing the Grant Soil and Water Conservation District, made the motion, and Vance Lee seconded it, after a typo on the agenda was pointed out. The resolution is numbered 15-01-27-2, as No. 1 was the Open Meetings Act resolution, approved at the last regular meeting.

Gutierrez read the amendment, which will amend Section III, paragraph M of the Gila/San Francisco Water Commission Joint Powers Agreement. The amendment is the third to the JPA: "The Commission, acting as the New Mexico CAP Entity, does not have sovereign immunity. The individual parties to this Agreement, their officers, agents and employees retain all of the privileges and immunities from liability and exemptions, as set forth in the New Mexico Joint Powers Agreement Act, NMSA 11-1-6."

Charles "Tink" Jackson, representing Luna County, said he didn't think the amendment was needed "but it doesn't matter if we do it, because of the limited time."

Mary Burton Riseley, who had given public comment, burst out from the audience, without going to the podium or requesting to give comment: "That addresses my question. Who will be liable?"

Jackson said the immunities are in the JPA and set up by statute.

A roll call vote was made and 12 of the 13 members present answered Aye and approved the resolution. Janice Kiehne, representing the 1894 Luna Ditch Irrigation Association, who had been on the conference call, was unavailable to vote.

"But we still have 12, meeting the two-thirds requirement," Gutierrez said.

The next item on the agenda was to approve or disapprove draft legislative language for the GSFWC/CAP Entity legislation.

Jackson said he worked on the language, but it is not yet a draft bill. "It addresses two points that were addressed by Pete Domenici Jr. (lawyer contracted to the commission) at the last meeting. It recognizes that the GSFWC has no sovereign immunity. Once we are recognized at the CAP Entity, we should have access to the New Mexico Unit Fund. Nothing in the language has anything to do with taxing authority."

Gutierrez said if the commission were to seek other funding, it would need a federal tax number.

Siwik asked to make a comment. "Pete Domenici Jr. presented a six-page memorandum. He outlines the requirement for levy authority. This is something for all the 18 members. You will have to have their permission. This is how you will pay by assessing on water users, and potentially property owners."

Gutierrez said the group has not discussed the issue, and he doesn't feel it is necessary at this time. "We understand the need to collect fees from users to pay for the water."

Lee pointed out the language, if it goes to the Legislature and for all other documents, requires an "s" at the end of Settlements, as in Arizona Water Settlements Act.

Tom Bates, representing the Luna Soil and Water Conservation District, said the word "all" in front of local governments should be removed, as Silver City was not a member of the commission.

Gutierrez said, as this was just a suggestion and draft, he was not comfortable voting on it without the legislative language.

Members voted to table VI 6 on the agenda.

Domenici came onto the conference call late. Gutierrez told him the group had approved the resolution.

Domenici said he had had a phone meeting with the Interstate Stream Commission staff, including Craig Roepke, attorney Dominique Work, the financial person, whose name he could not recall, and Amy Haas, acting ISC director.

"We had a discussion on whether the GSFWC is eligible to be the CAP Entity," Domenici said. "It is my legal opinion that it does not have sovereign immunity, so it doesn't require a statute nor an amendment to the JPA. We discussed how the ISC will interface with the GSFWC. The ISC legal staff will propose a JPA, which would include the ISC and the GSFWC in a JPA as the CAP Entity. The key issue is how much control and how decisions are to be made. Possibly there can be a memorandum between the ISC and GSFWC. I didn't know how the Gila/San Francisco would feel about the choice, so I did not give an opinion. You could name a member of the GSFWC as fiscal agent. The Commission does not have the authority to tax, which would require legislation. That is a reserved issue not at the forefront. I just received a memo this morning, that under the AWSA, you may not need taxing authority at this time."

Another issue he addressed was the leasing of water, as discussed in the Act. "It refers back to the 1968 act," Domenici said. "The ISC feels it may restrict leasing in New Mexico. I have to look at it further. Both parties showed willingness to work together, considering the urgency. Very soon, the CAP Entity needs access to operating funds. We made no decisions on our call. It was an informative discussion."

The third item of business was to discuss an amendment to the contract with the Domenici Law Firm.

"The original contract with Domenici was for up to $5,000," Gutierrez said. "We have paid $4,000 of the original $5,000. He has exceeded the agreed upon amount of work. I have a suggested contract up to $25,000, with the expectation of $10,000 worth of work already done. We should add $15,000 more on GSFWC becoming a CAP Entity."

Alex Thal, past treasurer, said the general fund had $2,237.60. "Is there a way to tap into the Reservation Fund?"

Gutierrez said, as the Reservation Fund is specific to planning, he thought it could be used. He said he would give the Reservation Fund report to the new treasurer, Darr Shannon, representing the Hidalgo Soil and Water Conservation District. Gutierrez noted the city of Deming is the fiscal agent for the Reservation Fund.

Vance Lee, representing Hidalgo County, made a motion to amend the contract, and Shannon seconded the motion.

Thal asked the treasurer to notify the Grant Soil and Water Conservation District's accountant, the fiscal agent for the commission's general fund to request to pull the $1,000.

When Gutierrez restated it as pulling $1,000 from the General Fund and $15,000 from the Reservation Fund, Lee withdrew his motion, saying he was hesitant to deplete both funds. Jackson picked up the motion and Shannon seconded it. It was approved.

Thal said he was afraid the commission might be "getting the tail ahead of the dog," and requested a small group work meeting to work through the needs of the commission.

The next regular meeting was set for Tuesday, Feb. 17, at 10 a.m.

The meeting was adjourned.