By Mary Alice Murphy
Haydn Forward, Catron County resident and member of the San Francisco Soil and Water Conservation District, on Jan. 15, 2020, gave a PowerPoint presentation to a group of about 50 people.
"I appreciate every one of you being here," Forward said. "What I really appreciate is that you have an opinion on the wild and scenic designation, but you want to use your intelligence to make up your mind, maybe change your opinion, but at least make an educated opinion about the Wild And Scenic Rivers Act and what it contains."
He said he would be talking about New Mexico Wealth, "but I'm not talking about the money you have in the bank. What we're talking about tonight is your wealth as New Mexico citizens, and it includes your water, your land, your recreation and your mining. You can throw in agriculture or grazing. This is what New Mexicans consider their wealth."
"New Mexico is known for using its natural resources," Forward said. "Not abusing, but using."
He showed images and said they were high-quality images. "I hope you enjoyed them. Who took them and who used them? They were taken and used by New Mexico Wild to promote the wild and scenic designation at wildGilaRiver.org, mostly associated with the Center for Biological Diversity. They are not looking to take your wealth; they are looking to control your wealth. Here's how they are going to do it—the Wild and Scenic Rivers Act. We'll be talking a lot about it tonight."
"It will have the potential to control your private lands and take your existing and future water rights," Forward alleged. "And, of course, it controls the other categories we discussed. We're going to talk about the language of the act."
The law was passed and signed into effect in October 1968. "There were good reasons for the act in 1968, but there is something that needs to be clearly understood."
"You have to understand that when a river is declared wild and scenic, there is a corridor that is ¼ of a mile from the bank on one side of the river and ½ mile on the other side. The dividing line is the high-water mark. In 1968 when the act passed, eight rivers were being designated because they wanted to save them for future generations. They wanted to stop massive dams."
He cited Section 7 (a) of the act as stating "The Federal Power Commission shall not license the construction of any dam, water conduit, reservoir, powerhouse, transmission line or other project works…on or directly affecting any river which is designated in section 3 of this act as a component of the national wild and scenic rivers system or which is hereafter designated for inclusion in that system…"
Forward noted that thebmajority at that time were located in the Pacific Northwest, where they have a lot of water, and in some of the areas, not much population.
On a map, he pointed out the big empty spots of little to no wild and scenic designations in New Mexico, West Texas, Oklahoma and Kansas, "because we don't have much water and what we have we use it. Presidents Taft and Roosevelt told us if we wanted to become a state, we needed to use our water. The USDA has given hundreds of millions of dollars for states to utilize the water to store, to irrigate, to conserve, to stop erosion. In Grant County, there are lots of applications to utilize the water, using USDA dollars. The wild and scenic designation will stop any applications to use the water."
Forward cited section 2 (b) 1, 2 and 3 as stating the designation should be administered as one of the following, 1) wild river areas that are free-flowing or can be restored to the condition and are generally inaccessible except by trail; 2) scenic river areas with no impoundments and still largely primitive, but accessible in places by roads and 3) recreational river areas readily accessible by road or railroad that may have undergone some development and some impoundment or diversion in the past.
"The best I can tell from reading the proposed designation for parts of the Gila and San Francisco rivers, more than 400 miles of river are to be designated," he said. "That includes every tributary in the Gila watershed. What I see is overreach by New Mexico Wild."
He read the list of segments being proposed to be designated wild and scenic. They include the Gila Box, the West Fork, the East Fork and on and on. The list of the San Francisco tributaries and segments also encompasses most of the river and its tributaries.
"Wild and Scenic takes federal law and overlays it over local and state laws, taking control away from local and state entities," Forward said. "Washington will have control. New Mexico Wild was talking about five months ago about 250 miles, and now it's about 400."
He noted that for many years the Forest Service has looked at whether the wild and scenic designation would be appropriate for the Gila National Forest. "They came to the conclusion that maybe 18 miles would be appropriate to be so-designated. Would you rather believe the professionals at the Forest Service or New Mexico Wild, which is just an organization with an agenda? The Forest Service says most of the wilder parts of the Gila River are protected by wilderness already and don't need further protection. Oh, and by the way, our U.S. Senators are changing the custodian of the wild and scenic designation from the Secretary of the Agriculture to the Secretary of the Interior. That's the way the new statute is being written by Senators Heinrich and Udall."
New Mexico Wild is saying that the designation will make the economic base go up. "However, studies from Utah State University show no positive effects from the designation. The University of Montana study showed that where the wild and scenic designations are in the state, the tax base goes down."
Forward said that one of the selling points for the designation is that "trails will improve. The reality is that they have trees across the trails. No grants or specific funds are designated for trail improvements once the river is designated. The best that can be hoped is authorization for appropriations. 'We authorize the Forest Service to put a portion of its budget funding toward trails.' We all know what the Forest Service says about its budget. The Forest Service has been working for years on travel management, and we all know that is a camouflage word for closing trails. The plan closed more than 200 miles of trails already because they don't have the funds for managing trails."
He noted that maps are unavailable and will be made available after the date of enactment. "I have been clear to senators that they have only provided positive statements about wild and scenic. There has been no balance, no discussion to balance the scale. They are not giving us any information on the risks of the designation. I want to educate citizens to make good decisions, while considering the good points, as well as the risks. I have been told to go to New Mexico Wild to get maps. New Mexico Wild is controlling and telling the senators what New Mexico Wild wants out there. They and those allied with them are the only ones who know what segments are being designated. The senators are representing New Mexico Wild, not the citizens of Grant and Catron counties. They are not being honest with you."
"Once the river is designated, you can do whatever you want above and below the designated areas, as long as it will not affect the meaning of the act," Forward said. "It's a trick of the English language. If someone says that it is not following the intent of the act, then you can't do it. This is the federal government taking control of your land. It's right there in Section 7 (a)."
Forward said the senators have assured him that the new legislation specifically states that no land will be condemned in order to designate wild and scenic. "I can tell you that in the segments that were designated in northern New Mexico 72 acres of land were condemned. I have met the people whose land was condemned. Water rights were condemned. Nationwide, more than 29,000 miles of easement have been condemned. It's not taking your land; it's condemning an easement through your land."
"Let's talk about water rights," he continued. "The University of Nebraska-Lincoln had its legal department study the issue. They determined that you can do whatever you want with your water rights as long as it doesn't impair the purpose of the act. So, here's what's going to happen. Whoever is the custodian of the designation, which is not going to be the Forest Service, but could be Fish and Wildlife, BLM, maybe even the Corps of Engineers, will write a river management plan. It will require a minimum flow in the river, so it can legally condemn water rights to make sure the flow remains at least at its minimum. The user of the water right will be compensated, but you will be out of a job. What's going to happen to the tax base?"
Section 6 (c) of the act again states that no land may be acquired by condemnation for the purposes of the designation if such lands are in any incorporated city, village or borough which has in force a duly adopted, valid zoning ordinance "that conforms with the purposes of the act. The appropriate Secretary shall issue guidelines with the object of prohibiting new commercial or industrial uses other than uses which are consistent with the purpose of the act, and the protection of bank lands by means of acreage, frontage and setback requirements on development."
"You lose your zoning rights," Forward said. "The development of that town stops. It's frightening. It's a risk.
"Our senators are walking in step with New Mexico Wild," he continued.
An attendee noted that the blame should be shared with local governments, including Bayard, Hurley, Silver City and the Grant County Commission, which all supported the designation.
Forward said he is giving local governments the benefit of the doubt. "They've been told of the potential benefits, but none of the risks. If they had been told the pros and the cons, I wouldn't be here."
A man asked what the pros were.
"That future generations will be able to enjoy the rivers," Forward said. "All the designation does is bring laws and regulations. I wish there had been honesty."
A man noted that many of those in attendance had spoken to the senators and their representatives and only heard the pros.
Forward said he has been called a fearmonger "and I learned it was because I have shared the verbiage of the act."
He said Congress has designated 10 new wilderness areas in the state.
"The tactic that Heinrich has used is having the legislation written by special interests. Why wouldn't the senators come to the local population to write the legislation? Why did a group with an agenda write the legislation?"
Heinrich took the wilderness designation language of 3,000 words and waited for an omnibus bill of 6,000 pages to hide it in. "It never went before the state of New Mexico or in front of the population," Forward said. "It was put in a cubby hole until an omnibus bill that had to be passed came along. The senators signed an oath to represent every person in New Mexico. Who are they representing? Only those walking in lockstep with New Mexico Wild."
"This is the one map we got from New Mexico Wild," Forward projected it on the screen. "Everything outside the wilderness areas where the rivers are already protected, it's interesting. Here is a little bit of designation of the river above Reserve, a little bit below Reserve, a little bit in here below Glenwood and Alma and in a very heavy agriculture area, they put a little bit right there. Heavy agriculture right here," he pointed to a designation, which included some mining diversions. "They want to designate portions below and above heavy agriculture. Just proving what we are talking about. It's right in the act. You can do whatever you want below and above a designation as long as it will not change the intent of the act."
Forward said: "Someone owns all the water in New Mexico. Now we have had a new opportunity to get 14,000 acre-feet of water that is not owned by anyone in the state. The Arizona Water Settlements Act provides that water and the water still belongs to New Mexico. Wild and Scenic can take water away from you. Right now, you are using water from the rivers for irrigation, and it's not that expensive. The AWSA water is not too expensive for the exchange. Wild and Scenic shoots it straight to Arizona, where the people living there will irrigate with it, will drink it, will use it. Hundreds of millions of gallons of water originating in New Mexico have gone to Arizona and hundreds of millions of dollars Arizona is taking from us. The New Mexico Central Arizona Project and the AWSA are conspicuously absent from the new legislation."
Tom Shelley was the next speaker. "I am personally and professionally involved in this issue. I am a landowner and water rights owner on Mogollon Creek and on the Gila River. Although I work for Freeport-McMoRan as a civil engineer, I am not representing the company tonight. I'm representing myself. I am a fifth-generation rancher here and have a grazing allotment in the wilderness and own private land on Mogollon Creek. I am a member of the NM Farm and Livestock Bureau. I've spent my whole life in environmental permitting for my land and 27 years for the mines."
"I was caught by surprise," Shelley said. "I heard about it in a meeting when the mines were writing a letter in opposition to the designation, because of its potential impact on the mines' water rights, which diverts water off the Gila River into Bill Evans Lake. About the same time, I heard that New Mexico Wild was getting votes of support from local government leaders. So, I dove into the issue heavily. It just illustrates what Haydn had already told you. Once you go on the Internet, you can find volumes of condemnations, lawsuits around this designation. If I'm representing the community, I would go to the landowners and those who will be affected by the legislation, especially with the easy-to-know history of this legislation. The original design of this legislation was to stop diversions, mainly dams. But, since the legislation is written really broadly, so you can designate a dry wash as wild and scenic and it can be abused, just like the endangered species act and so many other laws that probably had good intent when enacted, but gave an opportunity for those who oppose the types of industry we have been talking about.
"I met with Mark Allison of New Mexico Wild," Shelley continued. "I also met with Heinrich's and Udall's staff. I appreciate their meeting with me, so I could pose my questions. I felt like they were straight forward with their answers, but they were also straight forward about things they can't control, like the lawsuits that would come after the designation."
He said the Forest Service thoroughly reviewed his application for the allotment before it was awarded to him. "They have said there is nothing unique about it." Shelley showed some slides of the usually dry creek, with maybe three weeks of running water a year. When it dries up, which is does for most of the year, the wildlife come to the water sources I pump for the cattle. We have a mutual understanding. The cattle scoot over when the bears come in."
A man in the audience said: "If I'm not mistaken, if your segment is designated wild and scenic, and it takes away your right to pump, the wildlife will have to go to other areas."
Shelley agreed and said even though the Forest Service went through their process and said my segments would not be eligible, "I asked New Mexico Wild why they were not waiting for the Forest Service to finish its plan. They told me they were more competent than the Forest Service. They said they walked every mile of every segment and felt each was unique. It looked to me like they just looked at the color code of the map and if it was green for Forest Service, it was eligible.
He explained that a part of being a grazing permitee is that the Forest Service still reviews his allotment every 10 years with a NEPA process, "to decide if we are complying with our agreement. I have another review coming up this year."
"If the segment of river is designated wild and scenic, it will simply place another layer of review and encumbrance on my permit. If they tell me I have to fence the cattle out, well, I still have a water right, unless they take that away, too."
The senator's staff members told me it wouldn't affect me and that if the Forest Service agreed to extend my permit, "it would be OK, and I could go on with what I'm doing. I don't know if wild and scenic can overrule the Forest Service."
"I know New Mexico Wild doesn't believe in grazing on wilderness," Shelley said. "And one lawsuit will put me out of business."
In the Gila Valley, where agriculture is everywhere, they want the designation everywhere the river or a tributary crosses federal land. If the designation is for recreational wild and scenic, the law says road access is expected. But there is no road access to some of the places intended to be designated. "I have a reason to question their science."
He also noted that the legislation as written today, only allows a person to continue doing "what you're doing now. You cannot change anything, even buy a new water right. We, as agriculturalists, are always looking for better ways to run our businesses. Right now, we need a permit to put a dozer in the river to maintain our ditches. We hope for a permanent diversion to prevent that. If a segment is designated wild and scenic, we would also have to talk to the wild and scenic water managers, perhaps Fish and Wildlife, for instance."
He noted that each segment designated wild and scenic would require a corridor of 326 acres for each, on each side of the river or tributary. "First of all, the reason for the original act, was to stop diversions, particularly dams."
When New Mexico Wild presented to the communities to seek their support, they told them "and me that the designation would not affect any diversions. However, on their website, they were encouraging supporters to choose to designate wild and scenic because it would stop any new diversion. That was not honest on their part. That's one reason why I oppose this designation, because they are using it as another reason to stop the Gila diversion. It's like the endangered species act. We've had trouble maintaining the highway 211 bridge between Gila and Cliff. When the water is running high, it's the only way out for residents of Gila. But they used the Endangered Species Act to stop us from improving the bridge for four years."
"Wild and scenic is not a no-impact scenario," Shelley said. "It will have an adverse effect on farming, ranching, mining and will regulate water development."
He noted that the New Mexico Farm and Livestock Bureau and the NM Cattle Growers have talked to friends in other states to learn about the impacts, and as a result, they chose to oppose the wild and scenic designation. "This approach to designate favors the radical environmental groups. Why didn't the senators bring it to the people who are the stakeholders, who have the land and water rights? I am appalled it was done the way it was. Yes, the environmentalists have a stake, too, but it should go to the population most affected by the designation. I also question the rush to get out ahead of the completion of the Forest Service Management plan. That bothers me."
Shelley pointed out that New Mexico Wild has on its board one of the founders of the Center for Biological Diversity, Kieran Suckling. "The CBD is wealthy and aggressive in its lawsuits. I think they will use wild and scenic as another way to further their hate of mining. In fact, the CBD just filed another lawsuit against grazing in the wilderness on Monday under the auspices of the Endangered Species Act. The CBD has stopped highway safety improvement projects with the ESA in California and Oregon."
Forward said to attendees that they would hear from the senators and New Mexico Wild that private lands 1) will not be affected, 2) that water rights will be protected and 3) that the tax base will increase directly through river visitation.
"Your private lands will be affected," he said. "The lawyers at the University of Nebraska said yes, they would be protected unless the use of water does not impact the intention of the act, and third, yes, river visitation has increased, but only in states that are business-friendly.
"What we are seeing is a foundation for litigation," Forward said. "Lawsuits will be filed over use of water, use of land, commercial development and mining. Suckling is proud of his more than 500 lawsuits since 2015. He brags about them. He had said he would rather hire poets and marketers than scientists and lawyers. The lawsuits enrich the CBD and handicap those who want to go on doing what they're doing."
He began to list the lawsuits filed by the CBD, "until I got tired of typing them all. Our goal is to stop the wild and scenic legislation. We need to retain our rights. We were never told of this developing project. Five years, New Mexico Wild had been working on this. For five months, we have been fighting it. We have a list of government agencies that have passed resolutions opposing the wild and scenic designation, including all 37 soil and water conservation districts in the state."
Forward encouraged everyone to contact Senators Heinrich's and Udall's offices by phone and use the talking points of 1) stop the wild and scenic legislation and tell them 2) that the legislation transfers local control of water and land to the federal government. People can also comment on gilacomments@tomudall.senate.gov.
"I am available to give presentations," Forward concluded. "Thanks for coming tonight."
He told the Beat that he had a presentation coming up soon in Mimbres.