State Gets Green Light for Gila Decision

Judge says petitioner in open meetings case has to pay $62 million bond to keep restraining order in place

A District Court judge in Santa Fe has lifted a temporary restraining order against the New Mexico Interstate Stream Commission. The move allows the commission to move ahead with plans to notify the US Department of the Interior that New Mexico plans to build a diversion on the Gila River in southwestern New Mexico.

Although the commission has until the end of December to officially make that decision, it's a likely move, given that at a public meeting in Silver City last week, state staff recommended commissioners choose that course of action.

Earlier this month, District Court Judge Raymond Ortiz told lawyers for the commission that it may hold meetings that comply with public-access laws and can discuss the Gila, but can't make any decisions about potential projects. The ruling continued a temporary restraining order he put in place after a former director of the commission, Norman Gaume, sued the state for alleged violations of the New Mexico Open Meetings Act.

Ortiz recused himself from the case on Nov. 13—for reasons that have not been made public—and the case was assigned to Judge Francis Mathew, who was appointed to the bench in January 2013 by Gov. Susana Martinez.

During the hearing's proceedings, attorneys for the Interstate Stream Commission argued that if the restraining order stayed in place, the state would be damaged to the tune of  $62 million. According to Guame, the judge asked how much money he could put toward those losses.

When Guame's attorney said he could pay only about $500 toward the required bond, the judge found the offer insufficient and he lifted the temporary restraining order. A new trial is set for April 6, 2015.

"This is a setback, and it's certainly not what I had hoped," says Gaume. "But I'm not going to go away. And more important than that, the facts aren't going to go away, the opposition isn't going to go away, the ISC is not going to succeed—and they're going to waste a lot of money before they inevitably fail."

Representing the Gila-San Francisco Water Commission, three New Mexico counties, the Village of Columbus and the City of Deming, Pete Domenici, Jr. also spoke at the Thursday hearing, pointing out that the opportunity for southwestern New Mexico to glean water from the Gila River has been building for decades—and that the temporary restraining order deprived them of their rights to the water.

"A restraining order—which would be issued without any hearing, or the opportunity for anyone to present evidence—and to have an effect on something this far-reaching," Domenici told SFR, "the court should not allow it to continue to hold up the process."

In mid-November, the nonprofit Gila Conservation Commission had filed an Open Meetings Act violation against the Gila-San Francisco Water Commission with the New Mexico Office of the Attorney General. In regularly-held a meeting a few days later, on Nov. 18, commissioners officially voted on actions already taken, including to intervene in Gaume's lawsuit against the state.

By the end of 2014, the commission must decide the state's role in the Arizona Water Rights Settlement, a federal deal that created a mechanism for potential conservation or diversion projects in southwestern New Mexico. In 2004, the feds set aside $66 million, pledging another $34 to $62 million if the state decided on a diversion project by the end of 2014.

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