La Jicarita

Announcing our New Mexico premiere!

 

Dear friends,

After learning this weekend that burn, scar took home the “Best Documentary Feature” award at the Kansas City International Film Festival, we’re back with even more good news– burn, scar will have its New Mexico premiere at the Santa Fe International Film Festival on October 15th!

Tickets will go on sale 9/25 here; get yours before they’re gone!

We’ll be releasing a trailer for the film & announcing more local screenings in the next couple of weeks as well– stay tuned!

With deep appreciation and anticipation,

Hillary + the burn, scar team

The September 10 special meeting of the Village of Questa City Council on Kit Carson Electric Cooperative’s (KCEC) proposed hydrogen facility delivered a shock to the hundreds of people who attended. Longtime Questa Attorney Marcus Rael, Jr., who lives in Albuquerque but was born and bred in Questa, provided the documentation that essentially says the Village of Questa has no authority to stop the facility because the US Department of Agriculture (USDA), which issued the Environmental Analysis (EA) Record of Decision (ROD) allowing the development, has supremacy over the project.

Rael passed out printed documentation of rules and regs and went painstakingly through the process of explaining it. Here’s a summary that leads up to the supremacy decision:

• In February of 2026 the Village took action to zone the tailings dam, site of the project, as heavy industrial. The green hydrogen plant and the solar array qualify as heavy industrial and are allowed in that type of zone. The New Mexico Construction Industries Division (CID) confirmed in a letter that the village of Questa holds the statutory authority to approve planning and zoning applicants for the village of Questa.

• Taos County initially issued a zoning clearance building permit for a fence but that was later withdrawn.

• CID identified Kit Carson as a rural electric cooperative that . It cites New Mexico State Statute 60-13-3D3 for the exclusion applicable to construction, reconstruction, operation or maintenance of a cooperative’s plant or facilities.

• Projects by rural electric cooperatives are governed by the National Electric Code and the New Mexico Electric Code, which was adopted by the New Mexico Administrative Code, that states no permitting is necessary for electrical utility projects.

• The Public Regulatory Commission states that green hydrogen projects specifically do not require construction permitting.

• The municipality, county, and state have no authority over the project, only the U.S government does.

• The two acequias in Questa, Cabresto Lake and Irrigation Association and Llano Community Ditch, filed a complaint against the USDA that is still pending in court.

Rael stood for questions and they readily came. Several people asked Rael about his dealings with KCEC and if he knew in advance about this situation. He responded that he’d had preliminary meetings with KCEC attorneys and was allowed to ask some questions. He also requested a copy of the USDA application for the hydrogen project and was denied access, so he filed a Freedom of Information Act (FOIA)—twice. The Village of Questa and several other lawyers have also submitted FOIAs. No one has had a response.

Mayor Ortega, who has been accused of conflict of interest as a board member of KCEC (and who wielded an active gavel during the meeting), spoke up about Chevron, owner of the former molybdenum mine and the well for the hydrogen project. He stated that one way to stop the project is to ask Chevron to not provide the water to KCEC. He claimed that Chevron had turned its face from the community. Later in the meeting Attorney Rael stated that the mayor did not vote on the zoning ordinance when it came before the village council. Ortega also has stated that he would abstain from any votes having to do with KCEC. Rael then explained that Chevron is no longer managed by Chevron Mining Corporation or managed by Chevron Environmental Resources. The mine site and the tailing site are being managed by Chevron Asset Control. And what that company does is sells things off that they no longer need. “And they are very difficult to deal with.”

Many people raised questions about water, which in this time of extreme drought and climate crisis is critical. The fact that when KCEC first proposed the hydrogen plant, which breaks down water into energy, the water was supposed to be Chevron’s reclaimed water at the water treatment plant but was then changed to one of its tailing facility wells within the Village of Questa. Danny Garcia, Chairman of the Cabresto Lake and Irrigation Association, described the dire situation of surface water rights that have dropped precipitously over the past few irrigation seasons. By 1976 the Llano Community Ditch was receiving only 60 percent of its traditional amount of water. By 2020, that amount had diminished to 30 percent. For the last few years, Llano has received only two or three weeks-worth of water while Cabresto’s irrigation season is over (the two acequias are the plaintiffs in the complaint against the USDA). He also presented a history of Questa’s water rights and well development. Over the years a number of wells were drilled for domestic purposes in Questa but currently only two wells are in use. The well that will provide water for the hydrogen project is 500 feet deep and will supposedly supply clean water for the project (KCEC says it will divert 40-to-50 afy to the hydrogen plant but will apply to transfer the well’s 250 afy capacity). The Office of the State Engineer will have to provide an assessment as well as oversee Chevron’s application to transfer use of the well.

Attorney Rael pointed out that the Village originally had a well that was 175 feet deep. For a municipality, that’s just not sufficient, so “in 2016, we got the village to deepen the well.” Someone interrupted to ask, “Why are you saying we?” Rael responded, “Because I represented the village at the time. I’m from here, but if you don’t like my use of the word we, I’ll say they. The village deepened their well. As the village attorney, I worked on that.”

The other water issue raised is how the hydrogen plant uses the water. It takes H2O, hydrogen and oxygen, splits the atoms, saves the hydrogen, and releases the oxygen into the air.  Ninety percent of the water is going to be turned into hydrogen and get burned and then released as carbon into the air. It will not be recycled. When asked if anything could be done to protect the water, Rael said that the village of Questa or other individuals could go to the Office of the State Engineer when Chevron actually applies for the change of use for the tailings well and protest the transfer.

Longtime activist Juan Montes urged that the water transfer should be protested and also brought up another issue that La Jicarita covered in a previous article: “that this town has been run by a shadow government, by the Questa Economic Development Fund.” In the La Jicarita article, Honorio Justin Rael, a UNM Law School student, native of Questa, and co-author of the complaint filed against the USDA, had this to say at an August Village of Questa meeting:

“The people who make decisions for this town do not sit on that board [Village City Council]. It is the Questa Economic Development Fund. The Questa Economic Development Fund is an independent Chevron-funded nonprofit partner, but they are not an elected governing body.

Yet their agendas are probably four times the size of any agenda I’ve seen from this village. And you know how we’ve never gotten any updates on what’s going on with this project? Well, they get monthly detailed updates from the mayor. Last year, they made teams to complete the zoning ordinance that allowed this project to move forward without a project-specific vote.”

After some interruptions and an argument over whether the tailings at the proposed hydrogen site and solar array are completely covered, several people were ejected from the meeting by the state police (why are police always present at these kinds of community meetings?). Several other issues were raised about who will be responsible for costs if the project fails and the possibility of rate increases. On a more positive note, Shirley Romero, longtime San Luis Valley activist who was part of a land grant coalition that won back access to the privatized San Luis Land Grant, urged everyone not to give up hope and to engage their congressional delegation in the fight. Guy DiCharry, the attorney who filed the complaint against the USDA, told the Taos News he had sent a letter to the Regulation and Licensing Department challenging its interpretation of state statute exempting KCEC from permitting requirements but had not yet heard back. 

The Interim Land Grant Committee of the State Legislature met on August 26 for a presentation by Enrique Romero, Assistant Attorney General and Director of the Guadalupe Hidalgo Treaty Division. The agenda was the Ruben A. Valerio, et al. v. Cristobal de la Serna Land Grant lawsuit.

In layman’s language, this is the lawsuit that resulted from Cultural Energy KCEI radio station’s attempt to erect a radio tower on Picuris Peak to increase its broadcast range and expand the station’s capacity. The radio station currently owns 142 acres on the mountain top that it acquired from Roy Cunnyngham but must quiet title the land with a wide range of various property claims—from individuals, deceased persons, and the Cristobal de la Serna Land Grant. These are mostly varas, or narrow strips of land that extend from the top of the mountain down through Llano Quemado to the Francis Martinez acequia.

What makes this process so difficult is that many people have not perfected the title to their land. Instead, they use the 1941 assessment survey to describe the land they own. It’s called a survey but it’s really just a map to determine who to tax. The 1941 assessment survey has no field notes, recording where the information came from, and it doesn’t show any point of origin for the survey. There are no dimensions or compass bearings for any of the lines drawn on the map. It’s not a survey that can show where exactly your land is. If you want to get a second mortgage on your property, if you want to sell your land and get title insurance, you have to actually have a professional survey made and be able to quiet title it.

In the lawsuit, Ruben A. Valerio represents his deceased father Candido Valerio, who filed the first quiet title complaint against Cultural Energy, subsequently negotiated with Robin Collier, KCEI manager, and became a plaintiff along with Cultural Energy. Cristobal de la Serna Land Grant, represented by Northern New Mexico Legal Aid, filed a motion to dismiss Cultural Energy’s quiet title suit.

In 2004 a new law was added to Chapter 49 of the Statutes of New Mexico that created a new designation of land grants that have to apply to the legislature to become political subdivisions of the state, giving them sovereign immunity from quiet title suits. The remaining Federal land grants would not have this immunity. These are the two additions:

• Section 42-11-1 grants immunity from suit to “[t]he state of New Mexico and its political subdivisions” for cases “involving a claim of title to or interest in real property except as specifically authorized by law.”

• Section 49-1-1 states that “[a]ll land grants-mercedes in the state or land grants-mercedes described in Section 49-1-2…shall be managed, controlled and governed by their bylaws, by the Treaty of Guadalupe Hidalgo and as provided in [the Land Grants Act] as political subdivisions of the state.”

In 2024, when the Cristobal de la Serna Land Grant filed a motion to dismiss Cultural Energy’s quiet title suit, it cited the two above statutes. But after Cultural Energy’s attorney Ernest Padilla filed a strong brief, Eighth Judicial District Judge Emilio Chavez affirmed Cultural Energy’s right to quiet title and also noted that there has been no case law on this issue since 2004 that sets any precedent. The Land Grant appealed the district court decision to the Court of Appeals.

After the New Mexico Court of Appeals and the New Mexico Supreme Court both turned down appeals, on August 6th the NM Court of Appeals wrote a definitive 13-page opinion in favor of Cultural Energy and the Valerio estate:

“While Section 42-11-1 grants immunity to ‘political subdivisions’ from suit to quiet title, Section 49-1-1 does not declare that land grants-mercedes are political subdivisions in all respects and instead directs that land grants-mercedes should be ‘managed, controlled and governed….as political subdivisions.’ Considering the language and purpose of the Land Grants Act, as well as the nature of land grants-mercedes and common lands, we conclude that the Legislature did not intend to provide blanket immunity to land grants-mercedes for quiet title action.”

“The Land Grants Act was passed in order to ‘create a board of trustees’ that would ‘manage their common lands’ (the boards).” The common lands managed by the boards “are jointly held as private property by the heirs of the land grant,” (Rayellen, 2014-NMSC-006, ¶ 39), and the purpose of a quiet title action is “to determine and quiet the title of real property . . .  against any person or persons, claiming title thereto, or parcel or portion thereof,” (see NMSA 1978, § 42-6-1 (1945). Thus, any quiet title action involving the common lands of a land grant-merced does not involve a governmental function but instead is a private property dispute.”

If the court had decided in the Land Grant’s favor, individuals as far away as Walmart and Cruz Alta would be denied their right to quiet title their properties. It’s hard to know if the 2004 legislators understood the ramifications of their decision to amend state statutes to give land grants power over quiet title. The Court of Appeals more specifically answered that question:

“[W]e decline to rely solely on the shared language between [the statutes] and conclude that based on the nature of land grants-mercedes, the purpose of the Land Grants Act, as well as its other provisions, the Legislature did not intend for its 2004 amendment to Section 49-1-1 to extend Section 42-11-1 immunity to land grants-mercedes for suits to quiet title.”

The Cristobal de la Serna has the right to appeal to the New Mexico Supreme Court by September 8, although that court previously declined to hear the argument and sent it back to the Appeals Court. In all probability, organizations like the New Mexico Land Grant Council that supported the Cristobal de la Serna Land Grant will push to bring the issue before the legislature once again. That was expressed at the Interim Land Grant hearing by several of the attendant legislators, none of whom were in the 2004 legislature.

During that discussion, Assistant Attorney General Romero emphasized that he thought the court is stepping into the legislative role and didn’t agree that there is a distinction between land grants’ internal and external governance that inhibited their right to deny quiet title.

The Interim Committee will meet next in Taos on September 16th & 17th

Editor’s Note: These events are credited to Jean Stevens, Director, Taos Environmental Film Festival, 2015-2022.

“The World is My Country”

 A Broadway song and dance man turns his war guilt over bombing civilians into electrifying action that galvanizes war-weary Europe, sparks a movement and helps pave the way for the UN unanimously passing the Universal Declaration of Human Rights.

Taos Public Library, Saturday, September 19, 1 to 3 pm, free.