In Re: State Of NM, et al v. Aragon, et al

Filing 11280

FILED IN ERROR - SCHEDULING AND PROCEDURAL ORDER for Determination of Priority Dates and Irrigation Water Requirements in the Rio Cebolla Subsection of Section 3 of the Rio Chama Stream System by Magistrate Judge Kirtan Khalsa. (jdm) Modified error text on 9/11/2017 (ln).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

STATE OF NEW MEXICO, ex rel.
State Engineer
Plaintiff,
v.

69cv07941-MV/KK
RIO CHAMA STREAM SYSTEM
Section 3: Rio Cebolla

ROMAN ARAGON, et al.,
Defendants.

SCHEDULING AND PROCEDURAL ORDER FOR DETERMINATION OF
PRIORITY DATES AND IRRIGATION WATER REQUIREMENTS IN THE RIO
CEBOLLA SUBSECTION OF SECTION 3 OF THE RIO CHAMA STREAM SYSTEM
This Order is entered by the Court pursuant to Federal Rules of Civil Procedure Rule
16(b) to guide the course of the determination of priority dates and irrigation water requirements
in the Cebolla Subsection of Section 3 of the Rio Chama Stream System.
I.

DETERMINATION OF PRIORITY DATES
A.

Under the July 25, 2000 Procedural Order for the Adjudication of Water Rights

Claims in the Rio Nutrias, Rio Cebolla and Canjilon Creek Sections of the Rio Chama Stream
System (Doc. 5913), as amended August 8, 2001 (Doc. 6321), the adjudication of priority dates
and irrigation water requirements will be initiated by the State of New Mexico (“the State”)
following the completion of individual subfile activity. As individual subfile activity has been
completed in all subsections of Section 3, the only remaining elements to adjudicate in the
Cebolla Subsection for surface water irrigation use are priority dates and irrigation water

requirements.
B.

Pre-1907 Surface Water Irrigation Rights

The State proposes the following priority dates for pre-1907 water rights associated with
the ditches listed below. Ditches that convey water with both pre-1907 and post-1907 water rights
are marked with an asterisk (*). The acreage for post-1907 water rights is detailed in Section C
below (Post-1907 Surface Water Irrigation Rights).
DITCH

PRIORITY DATE

Acequia del Pinavetal *

1883

Acequia Madre de Cebolla

1875

Alto Ditch*

1889

Atencio North Ditch

1882

Atencio South Ditch

1882

Canuto Valdez Ditch

1897

Cordova-Maes North Ditch

1875

Emiliana Maes South Ditch

1906

Felipe Archuleta Ditch

1903

H.B. and G.C.-Martinez Ditch

1878

Julian Serrano Ditch

1906

Maes South Ditch

1876

Martinez-Cordova North Ditch

1879

Martinez-Cordova South Ditch

1879

Montano-Martinez Ditch

1882

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Nicomedes Trujillo Ditch

1904

Old Valdez Ditch

1878

Quintana Ditch

1875

Sanchez Ditch
CHCB-001-0002
Ernest Sanchez
Margie K. Sanchez

1898

Sanchez Ditch
CHCB-001-0007
Charlie Chacon
Geralda M. Chacon

1905

Skelly-Maes Ditch

1906

Trujillo-Lopez Ditch

1898

Unnamed Ditch No. 1

1875

Unnamed Ditch No. 2

1875

Venceslao Martinez Ditch

1886

C.

Post-1907 Surface Water Irrigation Rights

The State of New Mexico proposes the determination of the following priority dates for
lands in the Cebolla Subsection that are irrigated under an approved permit or final license issued
by the Office of the State Engineer, or under an approved permit for the transfer of irrigation
water rights as described below. (Please note: if you have both pre-1907 and post-1907 water
rights on a single ditch, only the post-1907 water rights acreage is detailed below.)
SUBFILE

OSE PERMIT / LICENSE ACRES

PRIORITY DATE

CHCB-001-0001F
Azalea Maes

No. 2686
Acequia del Pinavetal

November 21, 1949

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10.60

Celeste Maes
Immanuel Maes
Joshua Maes
Lorie Maes
Petra Maes
CHCB-001-0004
Tobias H. Sanchez

No. 2738
Acequia del Pinavetal

1.70

August 3, 1951

CHCB-003-0001
Galina V. Vigil
Frederick R. Vigil

No. 2631
Alto Ditch

23.30

March 29, 1948

CHCB-003-0002
Galina V. Vigil
Frederick R. Vigil

No. 2631
Alto Ditch

25.10

March 29, 1948

CHCB-003-0022
Adela Martinez
David R. Martinez

No. 2631
Rincon Blanca Ditch

20.00

March 29, 1948

CHCB-006-0001
Arthur F. Hibner
Revocable Trust

No. 2658
Sixto Alire Ditch “A”

47.30

November 18, 1948

No. 2658
Sixto Alire Ditch “B”

21.80

November 18, 1948

No. 2658
Sixto Alire Ditch “C”

63.50

November 18, 1948

No. 2658
28.10
Emiliana Maes North Ditch

November 18, 1948

No. 2631
Rincon Blanca Ditch

March 29, 1948

CHCB-007-0001
Ephraim Valencia
Jedburgh Ltd.
Lorraine Valencia

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10.00

CHCB-007-0002A
Donna M. Martinez
Leroy A. Martinez

No. 2631
Rincon Blanca Ditch

15.00

March 29, 1948

CHCB-007-0002B
No. 2631
Henry E. Lieber
Rincon Blanca Ditch
Martinez Ranch Partnership

30.00

March 29, 1948

CHCB-007-0003
Gustavo Martinez
Rosina Martinez

No. 2631
Rincon Blanca Ditch

40.90

March 29, 1948

CHCB-007-0004
Mary Jo Martinez

No. 2631
Rincon Blanca Ditch

17.30

March 29, 1948

CHCB-007-0005
No. 2631
Heirs of Gilberto Martinez Rincon Blanca Ditch
Jerry Garcia
Lydia Garcia

4.80

March 29, 1948

CHCB-007-0007
Alice Martinez
Max D. Martinez

No. 2631
Rincon Blanca Ditch

2.00

March 29, 1948

CHCB-008-0001
Clyde C. Baker
Theresa Baker

No. 2631-2735
Rincon Blanca Ditch

320.00

March 29, 1948

D.

Transferred Water Rights:

MOVE-TO LOCATION
CHCB-002-0001B
Charlie Chacon
Geralda M. Chacon
E.

DITCH
Chacon Ditch

OSE PERMIT
No. 0636-D

PRIORITY DATE
1883

The adjudication of water right priorities in the Cebolla Subsection shall be

completed in a show cause proceeding modeled on the process used in the determination of

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priority dates in Section 7, Village of Chama. See Scheduling and Procedural Order for
Determination of Priority Dates and Irrigation Water Requirements in the Village of Chama
Subsection of Section 7 of the Rio Chama Stream System filed May 30, 2013 (Doc. 10915). The
form of Notice will inform the defendants that the Court has entered an Order that requires them
to file an objection with the Court if they disagree with either: (1) the priority date proposed by
the State for their own irrigation water rights or, (2) the priority dates proposed by the State for
any other irrigation water rights in the Cebolla Subsection. The Notice and Order to Show Cause
will be served by mail on all defendants in the Cebolla Subsection.
In the absence of an objection to the priority dates proposed by the State, the Court will
enter a final order with respect to priority dates of all irrigation water rights in the Cebolla
Subsection. The determination of priority dates shall be subject to the right of water rights
claimants in other Sections, or in other Subsections of Section 3, to object, prior to the entry of a
final decree. The defendants in the Cebolla Subsection will be informed that they will have no
other opportunity to protest priority date determinations of the irrigation water rights in the
Cebolla Subsection, and that subsequent inter se proceedings in the Cebolla Subsection will not
include the opportunity to object to those determinations.
In cases where defendants in the Cebolla Subsection have previously agreed with the State
on the priority for their water rights, and those priority dates have been incorporated into subfile
orders entered by the Court, those priority dates cannot be challenged by those defendants.
However, other persons with standing may file objections.
The State shall publish the Court’s Public Notice and Order to Show Cause to inform
defendants and all persons having water rights of any type in the Cebolla Subsection of their right

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to participate and offer evidence in support of objections to the proposed determination of priority
dates and irrigation water rights in the Cebolla Subsection. The approved Public Notice shall be
published once a week for four consecutive weeks in the Rio Grande Sun.
II.

DETERMINATION OF IRRIGATION WATER REQUIREMENTS
A. Pre-1907 Surface Water Irrigation Rights
The State proposes the following irrigation water requirements for pre-1907 surface water

irrigation use in the Cebolla Subsection:
a. The weighted consumptive irrigation requirement (CIR) is 1.09 acre-feet per
acre per annum.
b. The farm delivery requirement (FDR) is 2.725 acre-feet per acre per annum.
c. The project diversion requirement (PDR) is 4.54 acre-feet per acre per annum.
The ditches in the Cebolla Subsection to which these amounts apply are those identified in
paragraph I. B above (Pre-1907 Surface Water Irrigation Rights), with the exception of those
lands that are irrigated under an approved permit or final license issued by the Office of the State
Engineer, which lands are identified in paragraph I. C above (Post-1907 Surface Water Irrigation
Rights). The irrigation water requirements for lands irrigated under an approved permit or final
license issued by the Office of the State Engineer are identified in paragraph II. B below (Lands
Irrigated Under an Approved Permit or Final License from the State Engineer).
The irrigation water requirements in the Cebolla Subsection described above do not
include

diversion

requirements

associated

with

stockwatering,

stockponds,

or

other

impoundments having valid water rights, which will be determined at a later date in these
proceedings.
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B.

Lands Irrigated Under an Approved Permit or Final License from the State

Engineer
The State proposes the determination of the following irrigation water requirements for
irrigation water use on lands in the Cebolla Subsection that are irrigated with surface water under
an approved permit or final license issued by the Office of the State Engineer, as described below:
OSE LICENSE NO. 2686
Acequia del Pinavetal
CHCB-001-0001F
a. CIR = 1.09 acre-feet per acre per annum.
b. FDR = 3.00 acre-feet per acre per annum.
c. PDR = 5.00 acre-feet per acre per annum.
OSE LICENSE NO. 2738
Acequia del Pinavetal
CHCB-001-0004
a. CIR = 1.09 acre-feet per acre per annum.
b. FDR = 3.00 acre-feet per acre per annum.
c. PDR = 5.00 acre-feet per acre per annum.
OSE LICENSE NO. 2658
Sixto Alire “A,” “B,” and “C;” and Emiliano Maes North Ditches
CHCB-006-0001
a. CIR = 1.09 acre-feet per acre per annum.
b. FDR = 3.00 acre-feet per acre per annum.
c. PDR = 5.00 acre-feet per acre per annum.
OSE LICENSE NO. 2631
Alto Ditch
CHCB-0003-0001
CHCB-003-0002
a. CIR = 1.09 acre-feet per acre per annum.
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b. FDR = 3.00 acre-feet per acre per annum.
c. PDR = 5.00 acre-feet per acre per annum.
Under OSE License No. 2631, from April 1st to October 1st of each year, water may be
diverted into the Alto Ditch at the rate and in the amount of surplus or rejected flows as
indicated by the flow at the mouth of El Rito de la Cienega Redonda or the flow of Cebolla
Creek just below the mouth of Emiliana Maes North Ditch, whichever is the lesser. During the
remainder of the year, from October 1st to April 1st, water may be diverted into the Alto Ditch
at a rate of 15 cubic feet per second at times needed.
OSE LICENSE NOS. 2631; 2631-2735
Rincon Blanca Ditch
a. CIR = 1.09 acre-feet per acre per annum.
b. FDR = 3.00 acre-feet per acre per annum.
c. PDR = 5.00 acre-feet per acre per annum.
Under OSE License Nos. 2631 and 2631-2735, from April 1st to October 1st of each year,
water may be diverted into the Rincon Blanca Ditch at the rate and in the amount of surplus or
rejected flows as indicated by the flow at the mouth of El Rito de la Cienega Redonda or the
flow of Cebolla Creek just below the mouth of Emiliana Maes North Ditch, whichever is the
lesser. During the remainder of the year, from October 1st to April 1st, water may be diverted
into the Rincon Blanca Ditch at a rate of 15 cubic feet per second at times needed.
OSE LICENSE NO. 0636-D
Chacon Ditch
CHCB-002-0001B
a. CIR = 1.09 acre-feet per acre per annum.
b. FDR = 3.00 acre-feet per acre per annum.
c. PDR = 5.00 acre-feet per acre per annum.
The irrigation water requirements in the Cebolla Subsection described above do not
include

diversion

requirements

associated

with

stockwatering,

stockponds,

or

other

impoundments having valid water rights, which will be determined at a later date in these
proceedings.

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C.

The adjudication of irrigation water requirements in the Cebolla Subsection shall

be completed in a show cause proceeding using the procedures described above in connection
with the determination of priority dates for water rights in the Cebolla Subsection. The form of
Notice will inform the defendants that the Court has entered an Order that requires them to file an
objection with the Court if they disagree with the irrigation water requirements proposed by the
State for use in the Cebolla Subsection. The Notice will be served by mail on all defendants in the
Cebolla Subsection.
In the absence of an objection to the irrigation water requirements proposed by the State,
the Court will enter a final order with respect to irrigation water requirements in the Cebolla
Subsection. This determination of irrigation water requirements shall be subject to the right of
water rights claimants in other Sections, as well as in other Subsections of Section 3, to object,
prior to the entry of a final decree. The defendants will be informed that they will have no other
opportunity to protest the determination of irrigation water requirements in the Cebolla
Subsection, and that subsequent inter se proceedings in the Cebolla Subsection will not include
the opportunity to object to this determination.
In cases where defendants in the Cebolla Subsection have previously agreed with the State
on the irrigation water requirements for their water rights, and those amounts have been
incorporated into subfile orders entered by the Court, those amounts cannot be challenged by
those defendants. However, other persons with standing may file objections.
III.

NOTICE
The Notice shall be mailed to the last known address of individual subfile defendants as

they are listed in the Court’s records. The State shall not be required to make a determination of

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current ownership of any tracts, nor mail Notice to persons that are not a party to these
proceedings. A successor-in-interest to an individual subfile defendant may request substitution of
parties under Fed.R.Civ.P. 25(c) in order to participate in these proceedings.
The State shall publish the Court’s Public Notice and Order to Show Cause to inform
defendants and all person having water rights of any type in the Cebolla Subsection of their right
to participate and offer evidence in support of objections to the proposed determination of
irrigation water requirements in the Cebolla Subsection. The approved Public Notice shall be
published once a week for four consecutive weeks in the Rio Grande Sun.
The State shall coordinate the mailing of the Notice and publication of the Public Notice
regarding the determination of priority dates and irrigation water requirements so that these events
and the stated deadlines therein occur in a coordinated manner.
After the deadline has expired for filing protests to the proposed determination of priority
dates and irrigation water requirements, the State shall submit a proposed scheduling and
procedural order to address and resolve any objections that are filed with the Court.
IT IS SO ORDERED.

___________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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