On the shoulder of U. S. Highway 64 with Taos Mountain, Taos mesa and El Prado Water and Sanitation District's newest well site as a backdrop, Cliff Bain and Ted Shuey scraped the ground of weeds, then collected rocks from along the highway right of way on Sept. 14.
The two Taos area residents are regarded as elders among a younger generation of protestors who have shepherded a grassroots coalition into Guardians of Taos Water, an organization pledged to safeguard Taos Valley from what in their view is a misuse of its land and water.
Safeguards for water and land use seem all the more pressing in light of the broader issues making headlines today: climate change, rollbacks in environmental protections and degradation of streams.
The historic blueprint for the use of the valley's waters is the Taos Pueblo Indian Water Rights Settlement, aka Abeyta, agreed to in 2012 after decades of negotiations among Taos Pueblo, Taos Valley Acequia Association, a dozen mutual domestic water suppliers and the El Prado Water and Sanitation District. The Abeyta case began decades before the agreement was reached as Taos Pueblo sought to confirm its rights to more than 8,000 acre-feet of water. The settlement first and foremost established in law Taos Pueblo's ancestral water rights.
It became "effective and enforceable" Oct. 7, 2016, nearly three years ago.
The Guardians contend some provisions in the settlement around deep wells threaten the shallow aquifer.
And so they staged a prayer ceremony on three consecutive Saturdays in September in front of the locked gates protecting access to El Prado district's property. Another ceremony at the site is planned for Sept. 28.
"We're not going anywhere," said Shuey.
Why the protest?
The chief targets of the Guardians are El Prado's deep water wells. According to settlement hydrologists, the deep aquifer system lies below the layers of basalt that extend across the valley to the Río Grande. Deep wells are drilled primarily into older basin fill deposits that "extend to depths greater than 3,000 feet." The basalts are readily seen along the walls of the area's canyons that drain into the Río Grande; the basin fill deposits comprise Pilar Hill and can be viewed throughout the Española valley.
At a Sept. 11 meeting of the Guardians, Azalea Gusterson, one of the principal spokespersons for the group, said, "It doesn't matter who owns what percentage of surface water in the valley if these large wells reach full pumping capacity and the streams and springs run dry."
Taos County resident Krystal Cretecos added that what bothered her "are the closed-door meetings taking place in Santa Fe. I've also read past stories in the Taos News about the lawsuits some of the signers of the agreement have been involved in."
Bain, board member of Guardians of Taos Water and longtime Taos community organizer, expressed his view that "Abeyta is a calculated cover for massive changes in the Taos Valley. It is an ecologically dangerous scheme, culturally destabilizing and undemocratic."
Others said El Prado's additional water rights gained through the settlement will accelerate development in the valley.
Besides El Prado district's production wells, only Llano Quemado Mutual Domestic Water Consumers Association is going forward with plans for a deep mitigation well. Recently, the mutual domestic made plans to contract with a hydrologist to locate the best placement for a well on the southwestern side of Río Grande del Rancho.
"For Llano Quemado, it's important to find another water source," said Andrew Chavez, chairman of the board of the mutual domestic. "We're going to provide water to our customers right away. It's not solely for mitigation."
Mitigation wells are intended to offset any future water depletions - should they occur. Water pumped from them can be piped into acequias or rivers and, according to the settlement's hydrologists, replenish the shallow aquifer. Five mitigations wells are authorized under the settlement.
Under the settlement, a mitigation well may be used to produce water for other uses besides offsetting water depletions.
Another mutual domestic that did not want to be identified expressed fear of harassment by those opposed to mitigation wells.
When asked whether Taos Valley Acequia Association had a position on the actions of Guardians of Taos Water at the El Prado well site, Palemon Martinez, chairman of the TVAA, said, "We coordinate with the other settlement parties here and there. But we're not involved in that."
Town of Taos Manager Rick Bellis said by email that the town may not need additional wells to meet its obligation under the settlement to mitigate, should it become necessary, the Río Fernando.
"We may be able to combine the planned wells into our existing wells to serve both as drinking water and remediation sources," he said.
One claim by settlement protestors is a lack of hydrological studies.
Understanding the water
In fact, the settlement's groundwater flow model, developed over several years of collaboration between the New Mexico Office of the State Engineer, the federal Bureau of Reclamation and the professional hydrologists that represented the settlement parties, is the mechanism that would evaluate the hydrologic impact of wells.
According to Attachment 3, "This model incorporates results from recent hydrogeologic investigations, including a recent own of Taos/Taos Pueblo cooperative deep drilling and hydrologic testing project sponsored by the USBOR" - the United States Bureau of Reclamation, which oversees water resource management.
Those investigations, dating from the early 2000s, found that "relatively little groundwater development has occurred in the Taos Valley and a trend of declining water levels in response to groundwater development has not been observed."
Hydrologists for Glorieta Geoscience Inc., which represented the own of Taos during some of the settlement negotiations, published a peer-reviewed paper in 2004 that analyzed some of the chemical properties in selected wells and surface waters in the Taos Valley.
The study, cited in the settlement, found that "water quality from both the shallow and deep aquifer systems is good. Poor quality water with high pH and arsenic and, more rarely, fluoride, were observed in some wells completed in the deep aquifers."
Other hydrologists acknowledge there is still much that is unknown. The most recent area study, "Hydrologic Investigation of the Southern Taos Valley," was published in 2016 by hydrogeologist Peggy Johnson and geologist Paul Bauer and co-authored by Brigitte Felix.
Johnson and Bauer also provided critical data during settlement negotiations. In an interview with this writer that was published in Sept. 2016 by the Taos News, Johnson suggested that settlement provisions for deep wells would benefit from additional geochemical modeling.
"Groundwater flow models typically don't consider the geochemistry," she said.
The state of New Mexico's effort to adjudicate water rights in the valley dates to the '60s. The Pueblo's ancestral water rights had to be quantified before the rights of non-Pueblo users could be determined. Settlement negotiations began in earnest in 1989 with the formation of the Taos Valley Acequia Association.
Since that time, some of the chief negotiators have died, and their knowledge has died with them.
John Painter, longtime member of El Prado district, talked about the history of the settlement negotiations. He expressed sorrow at the loss of some of his fiercest opponents, especially the attorney for Taos Valley Acequia Association and preeminent water lawyer, Fred Waltz, who passed away in 2012.
"Fred Waltz was a huge loss," said Painter. "Fred and Palemon (Palemon Martinez, the current chairman of the Taos Valley Acequia Association) kept the acequias whole, and worked like mad for the acequias."
The settlement's history from the '80s and '90s may seem ancient from the perspective of a younger generation, but it extends back even further, with roots in centuries-old water and land disputes and agreements that followed the arrival of Spanish and American colonizers to the region.
As one example, the settlement cites the 1893 Río Lucero decree regarding how the waters of the Río Lucero will be shared.
But history gives way to today's headlines.
The Guardians grabbed media attention in March when Buck Johnston, who described himself as Diné, climbed to the top of the drill rig for Midway Well #5--the first of the two Midway wells--and staged a sit-in for four days.
The El Prado district subsequently filed a complaint for criminal trespass, damages and injunction relief in Taos District Court against Johnston and the Guardians of Taos Water.
At the time of the March protest, Painter said he agreed with the Guardians that now was the time for more forums and education opportunities. The Taos News also reported at the time that Taos Town Councilor Pascualito Maestas said there was a need for more conversation around the settlement.
In April, Mayor Dan Barrone responded by letter to an invitation to participate in a public forum organized by the Guardians by saying that he and the Taos Town Council "are enthusiastically supportive of providing as much information to the public as possible about this historic agreement and maintaining complete transparency about every facet of the settlement."
The mayor suggested that the best approach would be "an independent panel" of experts that could be convened to provide an "objective, factual and thorough presentation" about Abeyta. He said he had asked "our professionals to contact the [Utton Center of the University of New Mexico] to develop a plan, some tentative dates and an estimate."
He said the town also approved $2,500 to get the process started "as soon as possible."
However, no one from the mayor's office was able to attend the GOT Water public forum last spring, according to a May 1 email to the Guardians from manager Bellis.
A copy of the mayor's letter and emails to the Guardians were obtained through a Freedom of Information Act request. Previous to the FOIA filing, four visits to the mayor's office requesting the letter did not produce copies.
Recently, Barrone and Bellis were asked for an update on the process the mayor outlined in his letter.
Bellis said by email he was not directly involved in this process, but that "we did contact and engage the Utton [Center] as an independent third party through the recommendation of our hydrologists to do public education sessions on the Abeyta Settlement, however, it is my understanding the U.S. Bureau of Reclamation has told them it will be doing its own series of outreach and public hearings for the environmental assessment process and the two entities are talking to each other about coordinating their efforts."
Since 2012 when the terms of the agreement were worked out, public meetings to explain Abeyta have taken place periodically. The federal water court accepted formal objections to the settlement in 2013, but all were denied by the court.
To help constituents understand the complex settlement, the town maintains a collection of important settlement documents on its website, taosgov.com.
In July, the Bureau of Reclamation said by email to the Taos News that two public meetings would take place in the Taos area within the next few months. The BOR has not responded to subsequent inquiries to nail down a date for these meetings or who will lead them.
Meanwhile, drilling of El Prado's Midway Supplemental Well #6 is underway, and the Guardians are making plans to renew their efforts to educate themselves and the community about Abeyta. Other actions near the well site are planned.
Traffic along the busy highway zoomed by Sept. 14 as the Guardians - some with kids, some hauling drums - trotted across the road to help with the preparations.
Spokesperson Gusterson placed snippets of sage in an abalone shell and lit them with a match. And as his young daughter looked on, Johnston tied strips of colored cloth to a branch.
When the altar was complete, the drummers and singers assembled. A pipe with tobacco was passed around.
And then, shortly after noon, the Guardians began to drum, sing and pray. One man who did not want to be identified spoke in his Native language and in English. He invoked Father Sky and Mother Earth and said his prayer today "was for the people, to open their eyes to the destruction that could happen."
It remains to be seen whether drumming, singing and prayer will be enough to bring the settlement parties together to review once again an agreement that took decades to reach.