In Re: United States of America & State of NM v. A & R Productions, et al

MOTION for Summary Judgment , Subfile No. ZRB-4-0169

D.N.M.August 15, 2016

ZRB-4-0169 - Motion for Summary Judgment Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA and ) STATE OF NEW MEXICO ex rel. STATE ) ENGINEER, ) ) Plaintiffs, ) ) and ) No. 01-cv-0072-MV/WPL ) ZUNI INDIAN TRIBE, NAVAJO NATION, ) ZUNI RIVER BASIN ) ADJUDICATION Plaintiffs in Intervention, ) ) v. ) Subfile No. ZRB-4-0169 ) A & R PRODUCTIONS, et al., ) ) Defendants. ) ) MOTION FOR SUMMARY JUDGMENT The United States of America and State of New Mexico respectfully move the Court for summary judgment in the above-referenced subfile proceeding. As grounds for relief in support of this Motion, Plaintiffs assert, as more fully set forth below, that the material facts regarding the water rights associated with the real property in the Zuni River Basin owned by Defendants Henry and Rebecca Grizzle are undisputed and Plaintiffs are entitled to judgment as a matter of law declaring that Mr. and Mrs. Grizzle are entitled to a water right in the amount of 2.043 acre- feet per annum for the lone well situated on their property. Pursuant to the Order Setting Discovery Deadlines and Adopting Joint Status Report (Doc. 3205) (Feb. 17, 2016) (“Case Management Order”), the Court established a deadline of Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 1 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 2 of 17 July 18, 2016, by which the Grizzles were required to file “any motion for summary judgment.” Mr. and Mrs. Grizzle did not file a motion. This Motion is timely filed under the deadline the Court established for “any response to Defendants’ summary judgment motion and any cross- motion for summary judgment.” MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION At the center of the parties’ dispute is a single well that the Grizzles use to support their household and ranching operation. Since the outset of this subfile litigation, the Grizzles have insisted that they are entitled to a water right of 3.0 acre-feet per annum (“AFY”) associated with the well. Consistent with this Court’s Procedural and Scheduling Order for the Adjudication of Water Rights Claims in Sub-Areas 1, 2, and 3 (Excluding Ramah) of the Zuni River Stream System, No. 01cv0072 BB/WDS-ACE, Doc. 838 (Sept. 28, 2006) (“Sub-Areas 1, 2, and 3 Order”), Plaintiffs prepared and presented the Grizzles with a proposed Consent Order. Based on information obtained during the hydrographic survey, Plaintiffs offered the Grizzles a water right of 2.424 AFY for the well for domestic and livestock purposes, with a priority date of December 31, 1950. The Grizzles rejected the proposed stipulation and Plaintiffs filed a Notice That The Consultation Period Has Ended, Doc. 1523 (Feb. 27, 2008). The Grizzles then timely filed an Answer in which they asserted both legal and factual grounds in support of a water right of 3.0 AFY. Subfile Answer, Doc. 1653 (Mar. 18, 2008). As a legal matter, the Grizzles stated that their well permit entitled them to Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 2 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 3 of 17 a right of that quantity. See id. at 3 (“Three acre feet is provided by state statute.”). As a matter of fact, they claimed “historical use” in that precise amount. Id. (setting out quantities of water used for household, livestock, garden, horses, and environmental uses). In 2011, the Grizzles amended their Subfile Answer to add another legal ground in support of their claimed right. Relying “on the railroad act signed into law by President Abraham Lincoln on July 1, 1862,” the Grizzles argued that their right to develop and use water on their property, title to which is allegedly traceable to the railroad originally granted the land under the 1862 Act, is unrestrained by the doctrine of beneficial use. Amendment to Subfile Answer, Doc. 2709 at 1 (Sept. 16, 2011). From the railroad, the Grizzles claimed to inherit “the right to develop the water on [their] property according to [their] needs.” Id. The Court subsequently issued the Case Management Order to govern the litigation of this subfile action. Shortly thereafter, the Plaintiffs served the Grizzles with interrogatories and requests for production of documents seeking details of the historic beneficial uses of water asserted by the Grizzles in their Subfile Answer and title documents supporting their claim of title traceable to the railroad in the Amendment. See Plaintiffs’ First Joint Discovery Requests (May 5, 2016) (attached hereto as Exhibit A). Based on the Grizzles’ interrogatory answers, Plaintiffs have withdrawn the proposed Consent Order offering a water right of 2.424 AFY and seek a summary judgment that their historic beneficial use of water entitles the Grizzles to a water right of 2.043 AFY for the well. Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 3 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 4 of 17 II. APPLICABLE LEGAL STANDARD Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Rule 56(a), Fed. R. Civ. P. The moving party bears the initial burden of “showing … that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once the moving party has met this burden, the nonmoving party must identify specific facts that show the existence of a genuine issue of material fact requiring trial on the merits. Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmovant must identify these facts by reference to “affidavits, deposition transcripts, or specific exhibits incorporated therein.” Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citations omitted). A fact is “material” if, under the governing law, it could have an effect on the outcome of the lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is “genuine” if a rational jury could find in favor of the nonmoving party on the evidence presented. Id. Although the record and all reasonable inferences therefrom must be viewed in the light most favorable to the nonmovant, see Muñoz v. St. Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000), a mere “scintilla” of evidence is insufficient to successfully oppose a motion for summary judgment. Anderson, 477 U.S. at 252. Even where, as here, the United States and State of New Mexico have moved for summary judgment, “to the extent that any water right is disputed,” the user of the water “generally bear[s] the burden of proof in the first instance with respect to the disputed water right.” Order, No. 01cv00072-MV-WPL, Subfile No. ZRB-2-0098, Doc. 2985 at 4 (D.N.M. Aug. 28, 2014). As a practical matter, then, the burden of persuasion at trial would be on Mr. and Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 4 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 5 of 17 Mrs. Grizzle. See Proposed Findings and Recommended Disposition, No. 01cv00072-MV-WPL, Subfile No. ZRB-2-0014, Doc. 3049 at 3 (May 27, 2015). Accordingly, Plaintiffs carry their summary judgment burden “by either (1) providing affirmative evidence negating an essential element of [the Grizzles’] claim or (2) showing the Court that [the Grizzles’] evidence is insufficient to demonstrate an essential element of [their] claim.” Id. (citing Celotex, 477 U.S. at 331). In addition, once the United States and State of New Mexico have carried their burden, the Grizzles must come forward with sufficient facts to establish that a disputed material fact exists. In our view, the plain language of Rule 56(c) mandates the entry of summary judgment … against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322. III. STATEMENT OF UNDISPUTED MATERIAL FACTS 1. The real property associated with Subfile No. ZRB-4-0169 is located in the SE¼SE¼ of Section 29, Township 12 North, Range 18 West, within Sub-areas 1, 2, and 3 (excluding Ramah) of the Zuni River Basin and contains, as its sole water feature, a single well. Declaration of Scott Turnbull (“Turnbull Decl.”) (attached hereto as Exhibit B), ¶ 3 and Attachment A. 2. In the Zuni River Adjudication Hydrographic Survey Report for Sub-areas 1, 2, and 3 (excluding Ramah), the well located on the real property associated with Subfile No. ZRB-4- 0169 is identified by the hydrographic survey ID number 2A-1-W035 (New Mexico Office of the State Engineer file number G1538) (“Well 2A-1-W035”). Turnbull Decl., ¶ 4 and Attachment A. Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 5 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 6 of 17 3. Based on the drilling date stated in the New Mexico Office of State Engineer’s (“NMOSE”) Point of Diversion Summary, the priority date for Well 2A-1-W035 is December 31, 1950. Turnbull Decl., ¶ 4; Grizzles’ Response to Plaintiffs’ First Joint Discovery Requests (“Discovery Resp.”) (attached hereto as Exhibit C) at 2 (answer to Interrogatory No. 1) (June 7, 2016). 4. The Grizzles claim a household beneficial water use of 90 gallons per day or 0.101 AFY. Subfile Answer, Doc. 1653 at 3; Discovery Resp. at 4 (answer to Interrogatory No. 7). This amount is consistent with “self-supplied domestic water use in New Mexico.” Turnbull Decl. ¶ 7 and n.1. 5. Because two individuals occupy their residence, the Grizzles’ actual beneficial use of water for household purposes is 90 gallons per capita per day or 180 gallons per day, which equals 0.202 AFY. Turnbull Decl. ¶¶ 7-8. 6. The maximum number of livestock animals the Grizzles have watered annually during their ownership of the real property associated with Subfile No. ZRB-4-0169 is twenty (20) sheep and goats for a full year, six (6) cattle for six months out of the year, and six (6) horses for a full year. Discovery Resp. at 3 (answer to Interrogatory No. 4); Turnbull Decl. ¶ 10. 7. The NMOSE technical report listing water use rates for various types of livestock animals in New Mexico provides that the per capita water requirement for non-dairy cattle is 10 gallons per capita per day; for horses is 13 gallons per capita per day; and for sheep is 2.2 gallons per capita per day. Turnbull Decl. ¶ 10 and Table 2. 8. The Zuni River Basin hydrographic survey applies a 50% efficiency factor to the per capita water requirement for livestock animals to account for any losses associated with the Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 6 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 7 of 17 delivery of drinking water. Turnbull Decl. ¶ 11. 9. Losses associated with the delivery of drinking water to livestock animals include losses for evaporation and consumption of water by wildlife. Turnbull Decl. ¶ 16 and n.2. 10. Based on the maximum number of livestock animals the Grizzles have watered annually during their ownership of the real property associated with Subfile No. ZRB-4-0169, the applicable NMOSE water use rates for livestock animals, and the Zuni River Basin hydrographic survey efficiency factor, the Grizzles’ beneficial use of water for livestock purposes is 0.341 AFY. Turnbull Decl. ¶ 11 and Table 2. 11. At some time during their ownership of the real property associated with Subfile No. ZRB-4-0169, the Grizzles have maintained a garden, cornfield, and fruit trees. Subfile Answer, Doc. 1653 at 3, 6 (photographs); Turnbull Decl. ¶ 12. 12. Recent aerial imagery of the Grizzles’ property shows an area of garden use approximately 0.5 acres in size that includes certain features depicted in the photographs submitted by the Grizzles in their Subfile Answer. Turnbull Decl. ¶ 13 and Attachment B. 13. The hydrographic survey has generally applied an irrigation duty of 3 acre-feet per acre for garden use in the Zuni River Basin to account for a typical irrigation requirement and an estimated application efficiency. Turnbull Decl. ¶ 14. 14. Based on the size of the Grizzles’ garden and the general irrigation duty applied in the Zuni River Basin, the Grizzles’ beneficial use of water for garden purposes is 1.5 AFY. Turnbull Decl. ¶ 14. 15. The Grizzles claim an “environmental” use of water for fire protection, wildlife, and disease control in the amount of 238 gallons per day or 0.317 AFY. Subfile Answer, Doc. Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 7 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 8 of 17 1653 at 3; Discovery Resp. at 4 (answer to Interrogatory No. 7); Turnbull Decl. ¶ 15. 16. While the Grizzles maintain exterior faucets to make water available for fire prevention, they have only put water to use for this purpose once, in an unspecified amount, during the period of their ownership of the real property associated with Subfile No. ZRB-4- 0169. Discovery Resp. at 2 (answer to Interrogatory No. 2) and 3 (answer to Interrogatory No. 6); Turnbull Decl. ¶ 15. 17. The Grizzles do not describe any beneficial uses of water associated with disease control. Turnbull Decl. ¶ 15. IV. ARGUMENT POINT 1: THE GRIZZLES’ OWN EVIDENCE OF BENEFICIAL USE COMPELS A WATER RIGHT OF 2.043 AFY FOR WELL 2A-1-W035 As this Court has declared repeatedly over the course of this adjudication: “New Mexico state law provides the substantive standards for this adjudication.” Proposed Findings and Recommended Disposition, No. 01-cv-0072 MV/WPL, Subfile ZRB-5-0014, Doc. 3277 at 3 (June 1, 2016). “The unappropriated water … is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state.” N.M. Const. Art. XVI, § 2. “Beneficial use shall be the basis, the measure and the limit of the right to the use of water.” Id. § 3. A “beneficial use is determined … to be the use of such water as may be necessary for some useful and beneficial purpose in connection with the land from which it is taken.” State ex rel. Erickson v. McLean, 62 N.M. 264, 273, 308 P.2d 983, 988 (1957) (citation omitted). See also 19.26.2.7(D) NMAC (defining beneficial use as “[t]he direct use or storage and use of water by man for a beneficial purpose including, but not limited to, agricultural, municipal, commercial, industrial, domestic, livestock, fish and wildlife, and recreational uses.”). Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 8 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 9 of 17 Based on the undisputed evidence of beneficial use in this subfile proceeding, most of which the Grizzles themselves have provided, the Grizzles are entitled to a water right for Well 2A-1-W035 in the amount of 2.043 AFY for domestic (household and garden) and livestock use, with a priority date of December 31, 1950. We address the undisputed evidence supporting each component part of this water right in turn. A. Household Use The Grizzles assert a right in the amount of 90 gallons per day, or 0.101 AFY, for household water use, an amount that is consistent with “self-supplied domestic water use in New Mexico.” Undisputed Fact 4. In their calculation, however, the Grizzles fail to account for the fact that two individuals occupy their residence. When their claimed right is properly doubled to account for the number of individuals occupying the residence, the water right to which the Grizzles are entitled for household use is 180 gallons per day, or 0.202 AFY. Undisputed Fact 5. B. Livestock Use The Grizzles have provided evidence that, during the course of their ownership of the subject property, the maximum number of livestock animals they have watered annually consists of twenty (20) sheep and goats for a full year, six (6) cattle for six months out of the year, and six (6) horses for a full year. Undisputed Fact 6. On the basis of this undisputed evidence, the Grizzles are entitled to a water right for livestock use calculated based upon (1) application of the NMOSE per capita water requirements for the particular types of livestock animals the Grizzles raise, (2) doubled to account for the 50% efficiency factor the Zuni River Basin hydrographic survey applies to the per capita water requirement for livestock animals to account for any losses associated with the delivery of drinking water. Undisputed Facts 7 and 8. Applying the per capita Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 9 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 10 of 17 water requirements and efficiency factor to their maximum livestock herd, the Grizzles are entitled to a water right for livestock use in the amount of 0.341 AFY. Undisputed Fact 10. C. Garden Use The Grizzles have provided photographic evidence that, at some point during their ownership of the subject property, they have raised a garden, including a cornfield and fruit trees. Undisputed Fact 11. However, the Grizzles have not provided any documentation regarding the size of their garden plot. Recent aerial imagery of the Grizzles’ property reviewed by the Plaintiffs depicts a garden area of approximately 0.5 acres in size. Undisputed Fact 12. Plaintiffs have corroborated the aerial imagery with the Grizzles’ photographs by identifying certain features depicted in both images. Id. On the basis of this evidence, the Grizzles are entitled to a water right for garden use calculated by multiplying the area of the garden by the applicable irrigation duty of 3 acre-feet per acre. Undisputed Fact 13. Here, that calculation yields a water right of 1.5 AFY. Undisputed Fact 14. D. Environmental Use The undisputed evidence material to the determination of the Grizzles’ entitlement to a water right for environmental uses establishes that no quantifiable amount of water from the well has been beneficially used. Regarding the “fire protection” component of this use, see Subfile Answer, Doc. 1653 at 3, the Grizzles explain that, while water is “available,” it has only been used once, in an unquantified amount, to put out a “small” fire that was “quickly contained.” Undisputed Fact 16. See also Discovery Resp. at 2 (answer to Interrogatory No. 2) and 3 (answer to Interrogatory No. 6). Regarding the “wildlife” component of this use, see Subfile Answer, Doc. 1653 at 3, the Grizzles again do not assert the use of any quantified amount of water. See Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 10 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 11 of 17 Discovery Resp. at 2 (answer to Interrogatory No. 2) and 3 (answer to Interrogatory No. 6) (explaining that “[w]ildlife including birds, deer and squirrels are frequently observed drinking from our stock tanks,” but noting that “[n]o records are kept on this activity”). Even if the Grizzles could quantify the amount, any such quantity would be subsumed within their livestock use, as explained in Section B above. See Undisputed Facts 8 and 9. Finally, regarding their use of water for “disease control,” see Subfile Answer, Doc. 1653 at 3, the Grizzles nowhere explain the alleged purpose for which water from their well is put to such use, much less quantify an amount beneficially used. Undisputed Fact 17. Thus, the evidence the Grizzles have provided in support of this alleged beneficial use is plainly insufficient to demonstrate the essential elements of the claim, and the Grizzles are not entitled to a water right for these so-called environmental uses. Viewing the undisputed evidence against the applicable legal backdrop, it thus is clear that the Grizzles are entitled to a water right for Well 2A-1-W035 in the amount of 2.043 AFY, consisting of a household use of 0.202 AFY, a livestock use of 0.341 AFY, and a garden use of 1.5 AFY. POINT 2: A WELL PERMIT DOES NOT PER SE ENTITLE THE GRIZZLES TO A WATER RIGHT IN THE AMOUNT OF THREE ACRE-FEET PER YEAR FOR THEIR WELL The Grizzles alternatively argue that New Mexico law entitles them to a water right of 3.0 AFY for Well 2A-1-W035 on the basis of the well permit they hold. Subfile Answer, Doc. 1653 at 3. As have many claimants in the Zuni River Basin Adjudication, the Grizzles misapprehend the legal effect of a well permit in New Mexico. Defendants’ well permit does not establish a legal right to any amount of water from the well, but merely authorizes them to Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 11 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 12 of 17 develop a water right up to three acre-feet. Put another way, the Grizzles’ “argument that a permit alone creates water rights contradicts New Mexico law.” New Mexico v. Trujillo, 813 F.3d 1308, 1321 (10th Cir. 2016) (citing N.M. Const. art. XVI, § 3 and Hanson v. Turney, 136 N.M. 1, 94 P.3d 1, 4-5 (N.M. Ct. App. 2004)). In New Mexico, to the contrary, only “beneficial use defines the extent of a water right.” Memorandum Opinion and Order, No. 01cv00072-BB-ACE, Doc. 733 at 4 (June 15, 2006). The Grizzles thus must establish, based exclusively on historic beneficial use, that they are entitled to a water right for the well greater than the right offered by Plaintiffs. See Order, No. 01-cv-0072 MV/WPL, Subfile ZRB-2-0098, Doc. 2985 at 4 (Aug. 28, 2014) (“to the extent that any water right is disputed, Subfile Defendants generally bear the burden of proof in the first instance with respect to the disputed water right”); Proposed Findings and Recommended Disposition, No. 01-cv-0072 MV/WPL, Subfile ZRB-2-0014, Doc. 3049 at 5 (May 27, 2015) (“The burden is on the [Subfile Defendants] to justify a water right above that which was offered by the Plaintiffs.” (citing Doc. 2985 at 2-3)). As discussed in Point 1, the Grizzles’ own undisputed evidence of historic beneficial use does not meet that burden. POINT 3: THE PACIFIC RAILROAD ACT OF 1862 NEITHER EXEMPTS THE GRIZZLES FROM THE REQUIREMENTS OF NEW MEXICO WATER LAW NOR GRANTS THEM AN UNLIMITED RIGHT TO USE WATER The Grizzles alternatively argue that federal law-specifically, the Pacific Railroad Act of 1862, 12 Stat. 489 (July 1, 1862)-should govern the determination of their water rights, rather than New Mexico law. They explain: This claim is based on the railroad act signed into law by President Abraham Lincoln on July 1, 1862 which states in part, “the railroads shall have the right to develop the resources according to their needs.” Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 12 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 13 of 17 Our property is a portion of section 29 Twp 12 [N] Range 18 W which was awarded to the railroad, and later sold. A search of all the deeds from Aug 26, 1919 when the railroad sold the property through September 29, 1989 when we bought the property reveals no exceptions or reservations of resources, other than exceptions and reservations for rights of way for roads and utilities, and one reservation by the railroad for a right to purchase back a 200 foot right of way. (Which they have not done.) Thus we claim that we have the right to develop the water on our property according to our needs. Amendment to Subfile Answer, Doc. 2709 at 1. Assuming the title to their property is traceable to the original grant to the railroad under the 1862 Act, the Grizzles in essence argue that their water use is unburdened by the requirement of New Mexico law that they demonstrate beneficial use. For at least a couple of reasons, the Grizzles’ argument is less than convincing. First, the language upon which the Grizzles purport to rely cannot be found in the Pacific Railroad Act of 1862. Neither the 1862 Act, nor any of the four subsequent statutes amending the 1862 Act, state, either in whole or in part, that “the railroads shall have the right to develop the resources according to their needs.” See 12 Stat. 489; Pacific Railroad Act of 1863, 12 Stat. 807; Pacific Railroad Act of 1864, 13 Stat. 356; Pacific Railroad Act of 1865, 13 Stat. 504; Pacific Railroad Act of 1866, 14 Stat. 66. In fact, nothing in the language or historical context of the acts even remotely suggests that Congress intended to exempt individuals like the Grizzles from the requirements of state water law. Section 2 of the 1862 Act granted the railroads the “right, power, and authority … to take … earth, stone, timber, and other materials” from “the public lands adjacent to the” railroad line “for the construction” of the railroad. 12 Stat. at 491. Other railroad acts include similar language. See Act of July 2, 1864, 13 Stat. 356, 364; Act of July 27, 1866, 14 Stat. 292, 294; Act Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 13 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 14 of 17 of March 3, 1875, 18 Stat. 482. This right was not unlimited. “[S]tatutes granting privileges or relinquishing rights are to be strictly construed” in favor of the government, such that “nothing passes but what is conveyed in clear and explicit language.” Caldwell v. United States, 250 U.S. 14, 20 (1919). See also United States v. Oregon & California R.R. Co., 164 U.S. 526, 539 (1896) (“all grants of this description must be construed favorably to the government, and … nothing passes but what is conveyed in clear and explicit language”) (citations omitted). According to this established principle of construction, Section 2 should be interpreted to have granted the railroad companies only the limited right to use materials “for the construction” of the railroad line, and not for commercial purposes, or, in this instance, for the purposes claimed by the Grizzles. See Caldwell, 250 U.S. at 21 (holding that substantially identical language in the General Railroad Right-of-Way Act of 1875, 18 Stat. 482, granted the right to “timber for purposes of railroad construction,” not for commercial purposes). Second, the Grizzles’ interpretation of the 1862 Act is inconsistent with the broader federal policy of the era, which showed “purposeful and continued deference to state water law,” to the extent that state water law embraced prior appropriation. California v. United States, 438 U.S. 645, 653 (1978). The 1862 Act, the other railroad acts, and this federal policy of deference must be understood in the broader context of the federal land laws of the era, which granted public lands to promote the development of agricultural and mineral resources in the west. Id. See also California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 157 (1935) (“it had become evident to Congress, as it had to the inhabitants, that the future growth and well-being of the entire [western] region depended upon a complete adherence to the rule of appropriation for a beneficial use as the exclusive criterion of the right to the use of water”). The Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 14 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 15 of 17 Grizzles would construe the 1862 Act to grant them a flexible right based on their future needs, unmoored from their actual beneficial use of water from Well 2A-1-W035. This reading would effectively result in “two overlapping systems for acquisition of private water rights” in New Mexico that would cause serious practical consequences. Andrus v. Charlestone Stone Prods. Co., Inc., 436 U.S. 604, 615 (1978). Indeed, the Grizzles’ alleged “railroad rights” would irretrievably reverse more than one hundred years of New Mexico water law derived from the State Constitution, which, not coincidentally, was drafted and ratified against the historical setting we summarize here. Given these circumstances, it is unlikely that Congress intended the reading that the Grizzles seek to apply to the 1862 Act. V. CONCLUSION WHEREFORE, based upon the foregoing undisputed material facts, argument, and authority, the United States and State of New Mexico respectfully request that the Court enter an order granting summary judgment in their favor and against the Grizzles, declaring the water rights associated with the subject property, in the following form: WELL Map Label: 2A-1-W035 OSE File No: G 01538 Priority Date: 12/31/1950 Purpose of Use: NON 72-12-1 DOMESTIC & LIVESTOCK Well Location: As shown on Hydrographic Survey Map 2A-1 S. 29 T. 12N R. 18W 1/4, 1/16, 1/64 SE SE SE X (ft): 2,448,373 Y (ft): 1,542,465 Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 15 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 16 of 17 New Mexico State Plane Coordinate System, West Zone, NAD 1983 Amount of Water: 2.043 ac-ft per annum Dated: August 15, 2016 Respectfully submitted, /s/ /s/ Edward C. Bagley Samuel D. Gollis Office of the New Mexico State Engineer U.S. Department of Justice Special Assistant Attorney General 999 18th Street P.O. Box 25102 South Terrace, Suite 370 Santa Fe, NM 87504-5102 Denver, CO 80202 (505) 827-6150 (303) 844-1351 ATTORNEY FOR THE STATE OF ATTORNEY FOR THE UNITED STATES NEW MEXICO Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 16 of 17 ZRB-4-0169 - Motion for Summary Judgment Page 17 of 17 CERTIFICATE OF SERVICE I hereby certify that on this 15th day of August, 2016, I filed the foregoing MOTION FOR SUMMARY JUDGMENT electronically through the CM/ECF system, which caused CM/ECF Participants to be served by electronic means, as more fully reflected on the Notice of Electronic Filing. I further certify that on this date I served the foregoing on the following non- CM/ECF Participant via U.S. first class mail, postage prepaid: Henry Ray Grizzle Rebecca Grizzle P.O. Box 154 Vanderwagen, NM 87326 /s/ Samuel D. Gollis Case 6:01-cv-00072-MV-WPL Document 3306 Filed 08/15/16 Page 17 of 17 Exhibit A Plaintiffs’ First Joint Discovery Requests Case 6:01-cv-00072-MV-WPL Document 3306-1 Filed 08/15/16 Page 1 of 8 ZRB-4-0169 Plaintiffs’ First Joint Discovery Requests Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO UNITED STATES OF AMERICA and ) STATE OF NEW MEXICO ex rel. ) STATE ENGINEER, ) ) Plaintiffs, ) No. 01CV00072-MV/WPL ) and ) ZUNI RIVER BASIN ) ADJUDICATION ZUNI INDIAN TRIBE, NAVAJO NATION, ) ) Plaintiffs in Intervention, ) Subfile No. ZRB-4-0169 ) v. ) ) A & R PRODUCTIONS, et al. ) ) Defendants. ) __________________________________________) PLAINTIFFS’ FIRST JOINT DISCOVERY REQUESTS To: Defendant Rebecca Grizzle To: Defendant Henry Ray Grizzle Pursuant to the Order Setting Discovery Deadlines and Adopting Joint Status Report (Feb. 17, 2016) (Doc. 3205) and Fed. R. Civ. P. 33 and 34, the United States of America and the State of New Mexico (collectively, “Plaintiffs”) hereby submit these first discovery requests to Defendants Rebecca and Henry Grizzle (collectively “Defendants”). Pursuant to Fed. R. Civ. P. 26, 33, and 34, both Defendants are each directed to separately respond to the discovery requests provided below. EXHIBIT A Case 6:01-cv-00072-MV-WPL Document 3306-1 Filed 08/15/16 Page 2 of 8 ZRB-4-0169 Plaintiffs’ First Joint Discovery Requests Page 2 of 7 INSTRUCTIONS Pursuant to Fed. R. Civ. P. 33 and 34, Defendants must serve their responses on Plaintiffs within 30 days. In addition to Fed. R. Civ. P. 33 and 34, Rule 6(d) allows an additional 3 days added on to the time for a response to discovery. Further, Fed. R. Civ. P. 6(a)(1)(C) states, “if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.” Therefore, Defendants’ responses must be served on Plaintiffs on or before June 7, 2016. Each Defendant is instructed to respond to each interrogatory and request for production in writing and completely. Defendants may submit a combined, common response if appropriate. Defendants should respond to each interrogatory in a separate document and/or on as many additional sheets of paper as needed. In producing documents in response to the requests for production, Defendants may produce copies of documents to Plaintiffs in either paper or electronic format. Defendants may also provide Plaintiffs the ability to inspect original documents. In the event you have any objection to any discovery request, you must nonetheless respond to the discovery request. If you find any request vague or ambiguous, you must nonetheless respond to the discovery request to the best of your ability and state any assumptions or limitations that you made to formulate a response to the discovery request. In your Subfile Answer (Doc. 1653), you claim a water right for domestic, livestock and other uses from well 2A-1-W035. Each interrogatory is designed to identify all the information you have in your possession to support your water right claims for uses from this well. Any ambiguity in the EXHIBIT A Case 6:01-cv-00072-MV-WPL Document 3306-1 Filed 08/15/16 Page 3 of 8 ZRB-4-0169 Plaintiffs’ First Joint Discovery Requests Page 3 of 7 interrogatories that you might claim or perceive must be construed consistent with this statement of context. DEFINITIONS “Document” includes, but is not limited to, all written and graphic material in whatever form (including drafts) regardless of the medium (paper, electronic, etc.) by which information is preserved. INTERROGATORIES Pursuant to Fed. R. Civ. P. 33, Plaintiffs issue the following Interrogatories to each of the Defendants. Interrogatory No. 1 - To the extent you have any information and with as much specificity as you have available, state the date that well 2A-1-W035 was drilled/constructed, the date that well 2A-1-W035 became operational (i.e., first produced water), who owned the well when it was completed, and what grazing lands were served by the well. Identify the person(s) responsible for answering the Interrogatory. Interrogatory No. 2 - For the water use from well 2A-1-W035 for domestic, livestock, and other purposes, provide a complete description of how water has been used to support each purpose (domestic, livestock, and other uses). For each year that water was physically applied since the well was drilled, include in your description how water was applied for each use, the period of time/duration that water was applied for each use, the type/number of livestock watered each year, and the number of homes served each year. For each/any year you have no information to respond to this Interrogatory at this time, you should indicate that you have no information to respond to this Interrogatory. Identify the person(s) responsible for answering the Interrogatory. Interrogatory No. 3 - To the extent you have any information and with as much specificity as you have available, for each and every year that water from well 2A-1-W035 was used for livestock use, state how livestock were watered from well 2A-1-W035 (i.e., the manner by which and the location to which the water was delivered from well 2A-1-W035 for livestock use). EXHIBIT A Case 6:01-cv-00072-MV-WPL Document 3306-1 Filed 08/15/16 Page 4 of 8 ZRB-4-0169 Plaintiffs’ First Joint Discovery Requests Page 4 of 7 For each/any year you have no information to respond to this Interrogatory at this time, you should indicate that you have no information to respond to this Interrogatory. Identify the person(s) responsible for answering the Interrogatory. Interrogatory No. 4 -To the extent you have any information and with as much specificity as you have available, for each and every year that water from well 2A-1-W035 was used for livestock use, state the quantity of water consumed by livestock from well 2A-1-W035. For each/any year you have no information to respond to this Interrogatory at this time, you should indicate that you have no information to respond to this Interrogatory. Identify the person(s) responsible for answering the Interrogatory. Interrogatory No. 5 - To the extent you have any information and with as much specificity as you have available, for each and every year that water from well 2A-1-W035 was used for livestock use, state when (i.e., the months of use/period of use) livestock were watered from well 2A-1-W035. For each/any year you have no information to respond to this Interrogatory at this time, you should indicate that you have no information to respond to this Interrogatory. Identify the person(s) responsible for answering the Interrogatory. Interrogatory No. 6 - To the extent you have any information and with as much specificity as you have available, for each and every year that water from well 2A-1-W035 was used for other uses (horses, fire protection, wildlife and disease control), state the quantity of water used for those purposes. For each/any year you have no information to respond to this Interrogatory at this time, you should indicate that you have no information to respond to this Interrogatory. Identify the person(s) responsible for answering the Interrogatory. Interrogatory No. 7 - In the Subfile Answer (March 18, 2008) (Doc. No. 1653), Defendants stated that “Our historical use . . . is three acre feet.” Describe the complete basis for your position that you are entitled to quantify a water right from this well greater than 2.424 acre-feet per annum as offered by Plaintiffs in the last proposed Consent Order. Include a description of any calculations performed, well meter logs relied upon, and measurements taken to establish and support the water quantity you claim. EXHIBIT A Case 6:01-cv-00072-MV-WPL Document 3306-1 Filed 08/15/16 Page 5 of 8 ZRB-4-0169 Plaintiffs’ First Joint Discovery Requests Page 5 of 7 For each/any year you have no information to respond to this Interrogatory at this time, you should indicate that you have no information to respond to this Interrogatory. Identify the person(s) responsible for answering the Interrogatory. Interrogatory No. 8 - Describe the basis for your contention that the Railroad Act of 1862 governs the attributes of your water right (priority date, amount, beneficial use, periods of use and place of use) in this subfile action. Identify the person(s) responsible for answering the Interrogatory. Interrogatory No. 9 - Describe your chain of title to your property as it relates back to the Railroad Act of 1862. For each/any year you have no information to respond to this Interrogatory at this time, you should indicate that you have no information to respond to this Interrogatory. Identify the person(s) responsible for answering the Interrogatory. REQUESTS FOR PRODUCTION OF DOCUMENTS Pursuant to Fed. R. Civ. P. 34, Plaintiffs issue the following Requests for Production of documents (“RFP”) to each of the Defendants. RFP No. 1 - For each of the Interrogatories listed above, produce every document used, relied upon, or referenced to respond to the Interrogatory. RFP No. 2 - For Interrogatory No. 9, produce every title document on which you rely to establish that the chain of title for your property relates back to a railroad that received its title under the Railroad Act of 1862. DATED: May 5, 2016 EXHIBIT A Case 6:01-cv-00072-MV-WPL Document 3306-1 Filed 08/15/16 Page 6 of 8 ZRB-4-0169 Plaintiffs’ First Joint Discovery Requests Page 6 of 7 Respectfully submitted, /s/ /s/ Samuel D. Gollis Edward C. Bagley U.S. Department of Justice Special Assistant Attorney General 999 18th Street P.O. Box 25102 South Terrace, Suite 370 Santa Fe, NM 87504-5102 Denver, CO 80202(505) 827-6150 (505) 827-6150 (303) 844-1351 COUNSEL FOR THE STATE OF Andrew “Guss” Guarino NEW MEXICO Bradley S. Bridgewater U.S. Department of Justice 999 18th Street South Terrace, Suite 370 Denver, CO 80202 (303) 844-1343 COUNSEL FOR THE UNITED STATES EXHIBIT A Case 6:01-cv-00072-MV-WPL Document 3306-1 Filed 08/15/16 Page 7 of 8 ZRB-4-0169 Plaintiffs’ First Joint Discovery Requests Page 7 of 7 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on May 5, 2016, I served the foregoing PLAINTIFFS’ FIRST JOINT DISCOVERY REQUEST on the following in the manner indicated: Via U.S. Mail, Postage Pre-paid: Henry Ray Grizzle Rebecca Grizzle P.O. Box 154 Vanderwagen, NM 87326 /s/ Samuel D. Gollis EXHIBIT A Case 6:01-cv-00072-MV-WPL Document 3306-1 Filed 08/15/16 Page 8 of 8 g ~~ ~_~ ~ -. ~~- Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 1 of 12 ~. ~ r: ;~ ~' ;~ _, Plaintiffs, c ~ ~ a . ~ ~ ~~aintiffs i~ Ir~~~rv~ntion, ~. ~~~EI1C~~T1~S. « ! f ~ •' , •> ~ . 11/Iy n~an~ ~s Scott T~a-nbul~. ~ ata~ a~ ~s~c~~ia~~ Engineer ~rit~ I~~tura~ ~.~s~uY~~s ~~r~=alts g ~~~~r~~vA~, Inc. ~"~T~~:~") ~i~ ~o~~ ~~ollit~s, ~~lor~ci~. ~ ~av~ ~acheiors a~ ~cienc~ de~°ee ~n Oval ~~g~r~~~~°~ ~ fic~zn ~c~lc~aado St~.t~ ~J~~~s~~y d ~ a ~r~~e~~f~s~al ~~b~ne~~ ~ac~r~sed ~r~ ~i~~ ~t~t~ of C~l~rad~. ~Ia~.i~ed ~ifi~tes conce~gz~g a~ter~ asso~;iated with the hydrographic s~rv~y of the Zuni River ~as~n and e Zuni €fiver basin 1~djudi~~tior~, 2. As an employee o~`I~II~CE, the en~in~erir~g ~ar~sulti~g fi~-~n cca~tra~ted by tie ITnited State t~ per~orzn the hydrog~°a~~i~ ~a~~-vey ~f t ~ ~~n~ ever ~~sir~, I Page ~ of 11 '~ Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 2 of 12 perfarm field visas todocument a.nd veri£g~ ~vat~r features ~vitl~in ~.nnd thr~~~l~out the basin to support any technical a~a~ysis ~ssociat~d nth the Zuni ~v~r basin Adjudication. I also camput~ water qu~ntz~i~s ass~~z~ted with these feat~ar~s based upon available information and by ~~S~lying accepted engineering methodology. 3. I have reviewed alt the ~~ez~a1 av~il~ble ~c~nc.eraaing ~-leery Ray tJ~zzle a.~d 12ebecca tJrizzle, Subfile ZR~-4-0159 {46Defendarpi:s"~. ~'he real property associated with this subfil~ xs loGa~ed ~n the SERE quarter-q~zarter of section 29, "~"ownship 12 North, Rage 1$ 'V+Iest, New 1Viexico Principal M~ridiaza ~s~e Attachment A - ~-€ydrographic Suzvey map for Subfil~ ZR..~-4-0169}. The material in my review included nmt~s, photographs, and geaspatial data callected try Ia11~.CE e~girzeers d~,rrzng vasits t~ tie Defendants' p~opez~y, as well as the Defendants' S`ub~le An~weY, filed Niarckz l~, 2008 ("20(~S Ans~we~"), their Amendment to Subfile Answer, fled Septem~ier 1 b, 201 ~ ("20l 1 Amendment"), az~d the .,Response dt~ Plaint~fs' ~'irst,~'oint I~iscUv~~°y ~equ~,sts dated Jae 7, 20I 5 ("I3iscov~ry R~sp~r~se"). I~ each ~f these do~.aa~aents, the ~ef~~ad~nts rake claims to thee° I~isto~~ grater use ass€~c~ated with ~ single will on the pr~p~rty. 4. The well is identified by NRCE hydr~~aph~c sua-~ey ~I~ number 2A-1-035 (Office of the State Engineer file cumber ~153~) as spa ors the I-~~dr~gra~l~rc Survey Map for Subfile ZR~-4-0169. ~'he ~ia~r~ti~fs' ~:o~se~t C~rd~r for this s~abfil~ of~'e~ed a ~te~ righ# of 2.424 acre-~'e~t ~~r annum ("AFY"} far well 2l-~- Page 2 of 11 ~~~~~~' 1 Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 3 of 12 1-~i103~ associated with historic use and a pri~~i~y date of ~e~e bar ~1, ? ~5t~9 bas~cl on the drilling date stated in the New Mexico Office of ih~ ~~a~~, E~g~~~~r's {66NI~~5~'99) Point of diversion S~a~- ~r~ fir Deli G153~. I~ ~ ~~r 200 answer and ~is~~very Response, the 3~efenclan~s disag~°~ed ~i~~ ~ ~ ~ffer~d r~gl~t, asserting instead a right of ~p t~ 3.0 AF's fc~r historic use,. ~ ~~ ~efen~ants have exp~°essed no c~isagreem~nt with the off~rec~ ~ris~rity date. ~. I~ their 2~0~ Arsswer and I~~s~overy response, defendants incl~.d~~ a ~abulati~~ of the daily and ar~ual historic water use ass~cia~e~ with their property. Table 1 lists the q~aantitres Defendants claim. 1~Itnou~h ~h~ sum ~~'t~~ vva~e~ ~s~s presented by the I)efenda~ts is sligh~l~ less than 3.0 ~FY, it i~ a~~arent fram the 200 Answer that the I~ef~~adan~s Maim that the l~~st€~ri~~.l water use assoc~at~d witP~ ~v~112~i-1- 035 is 3.0 !~~'~' (see 200 ~ns~v~re "~~r ialSit"isls~ai 1.~S2aS 52`~ ~~1"t~ft ~C3a,it'~'~ni i~ ~~aY'~~ ~i;~'E iC',~i."~. ~'~~1~ 1 ~ I~~~r IJ~~ fir ~112A~~- X35 ~~ser~e~ by ~~~°e~ ~~~~ IJ~~ a~l~ ~n~~a~~ A~r~a~°~~~ ~~~° Ga~~~~ ~~~lons ~x~~a~ ~ouse~hold 90 32,850 0.1 ~ 1 ivesto~k 1 fly 3 ,325 0.1 ~ ~ harden ~ X96.45 692,2fl4 2.124 g1~~SN5 .9~~ 109y~0o o.J~~ ~r~vironrr~ent ~~~ ~03,29~ x,317 Totals 2674.45 97ciq 1 ~4 2.96 6. used upon my review of all tie available material associated ~%v~th Su~f~e Page 3 ~f 11 ~~~ Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 4 of 12 ZRB-4-0169, I conclude, as explained in greater detail below, that the water quantities the Defendants claim do not appear to be based upon any actual measurements or estimates of historical beneficial use. Rather, the claimed quantities appear to have been selected so that the sum of the individual uses totals 3.0 AFY and therefore matches the right Defendants claim. HOUSEHOLD WATER USE 7. The Defendants claim a household water use of 90 gallons per day or 0.101 AFY (see Table 1). The 2008 Answer provides no basis or justification for this amount. In their Discovery Response, the Defendants provided a supporting document which states that the average person uses 101.5 gallons per day. Based upon my research, the document provided appears to be prepared by the City of Philadelphia and is available on the city's website at: http://www.phila.~ov/water/educationoutreach/Documents/Homewateruse IGS. pdf. Defendants' claim for household use of 90 gallons per day is consistent with the reference material indicating a household use rate of 101.5 gallons per capita per day ("gpcd") on which they appear to rely. Typical self-supplied domestic water use in New Mexico ranges from 70 to 100 gpcd.l It should be pointed out, however, that the daily use values are reported on a per capita basis and should be multiplied by the number of using persons to determine total ' Longworth, J. W., Valdez, J. M., Magnuson, M. L., and Richard, K., New Mexico Water Use by Categories 2010. New Mexico Office of the State Engineer Technical Report 54 (2013). Page 4 of 11 EXHIBIT ~ Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 5 of 12 8. Based on the available evidence contained in the Defendants' 2008 Answer and Discovery Response, and assuming that both Mr. and Mrs. Grizzle occupy the residence, the Defendants' total household use at 90 gpcd is 180 gallons per day or 0.202 AFY. STOCK WATER USE 9. The Defendants claim a livestock water use of 105 gallons per day, or 0.118 AFY, and a water use for horses of 300 gallons per day, or 0.336 AFY (see Table 1). The Defendants list "livestock" and "horses" as two separate items whereas NRCE has treated all domesticated animals in the Zuni River Basin collectively as "livestock". Thus, the total livestock component claimed by the Defendants is 405 gallons per day or U.454 AFY. 10. Several animal counts were provided by the Defendants in their Discovery Response in support of the livestock component of their water right claim. According to the Defendants' Discovery Response to Interrogatory No. 4, it appears that the maximum number of animals the Defendants have watered at any one time during the period of their ownership of the property, 1989-2016, is 20 sheep and goats for 12 months, 6 cattle for 6 months, and 6 horses for 12 months. Atso as part of their Discovery Response, the Defendants provided supporting material from the Ontario Ministry of Agriculture, Food and Rural Affairs, which lists typical water use rates for various farm animals. This document is available online at: http://www.omafra.gov.on.ca/en lig sh/engineer/facts/07-023.htm. The NMOSE Page 5 of 11 EX~IIBI'7C S Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 6 of 12 prepares similar technical reports listing water use rates for various types s~f livestock animals in New Mexico. 1 ~ . Applying tie Defendants' anirc~al courts aid the NTJi~SE water use rates, whzc~ are more ~ef7~cziv~ of c~~sditi~~~ i~ the Zi~ni Diver Ba~1ra than the ~anadia~ use rates, I com~u~e the I~efenda.Ylts' livestock use to be 0.170 A~'~I. I Then apply tie 50°/m efFcienc~ factor used ire the ~ydro~rap~c s~uvey an the Zuni River ~3asin to account ~oz' any lasses associated with delivei,~ng d~~nkiz~~ water to livestocl~ and, as shown in Table 2, I calculate tie ~~fer~dar~ts' ta~al livestock use to be Q.341 AFB. '`his use is equivalent tc~ 304 g~.11ons per day, quite a fit Tess khan the 40S gallons per day X105 gallons for livestock plus 300 gallops for horses} claimed by the D~fendarnts as shown ~n Table 1 above. ''able 2 - ~..ivestock [Tse f~~ ~~1~ 2A-1-'~U035 ~ss~rt~ by ~f~nd~ ~s ~~° ~~ Heed 1Vlont~as at~r Ilse Az~~a~a~ ~~~°~- eat ~~° ( pcd)~ Ga~l~ns Annum Non-airy 6 6 10 10 950 0.034Cattle ' H~rse~ 5 12 13 28,470 0.3$7 sheep ._ _ 2D 12 2.2 16,Ob0 0.049 Totals 32 55,480 0.170 ~~~ersaon Regiuree~t -___ _ __ r~ ~50% eff~zency 110,960 0.341 N' ew Me~cico Yt'aaer Use ~y Categories 2tJ1 ~. New Mexi~a Office of the 5~ate Engineer Technical Report 54. .. ;1. l2. The L)efendants claim a garden use of 1896,45 ~al~ons per day ~a- 2, ~ 24 A~~ {see Table 1). In their 2008 Answer, the 13efenda~ts provided ~hot€~gr~.phs Page 6 of i i ~~~' Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 7 of 12 zndicating the presence at or e time ~f g lens, ccsrn ~i~lds, end fruit tr~~s tin their property. !-aside frr~ t~~e af~r~ra~enti~ned phot€~gr~.pl~s, the Def~~daaats have not pravid~d any ~~f~r~~ati~t~ r~~a~dir~g ~he~r ~r~~atz4z~ ~ract~ces ~~ any ~~her basis for the annual water use of 2.124 AF'Y th~~ claim far garden use. 13. A~t~o~agh gt can be a~~ed, based are the pk~otographs pra~vided, that sarr~e amount of garden ~rrigatis~n may ~~~e t~~n ~1~ce from well 2A-1-W03S, the I.~efendants have nit provided any rn~~.surem~n~s, records, ar spec~~ic information detailing this use. A review o~ aerial ianagery of the I~~f~a~d~.nts' property shows that they ~a,ve apparen~l~r fe~~~d-cuff, ~r ~arti~Ily fenced-off, an area adlace~~ to their residence and well 2A-1-W035, which as indicative of a lawn ~z~ garden area (see .F~ttacl~r~er~t ~ - €J. S. I~e~artrr~esat of .~gri~ulture Farrs~ Servi~~ Agency (~IS~~ ~'S1~}, I~t~~i~~a~ Agricu~~r~ ~rxaage~y Program (I~TA~P), meter (reso~ut~an},1VIay 20, 2014j. his area appears ~fl cc~r.~~~pond ~~ ~vvl~at ~s seen in the phatogra~hs provided ley the I~efe~~dan~ts, as the s~on~ walls and f~~~in~ ~r~ vasa~~e i~ b~t?~ the ~ef~~~ar>~s' p~€~t~~~~~~~ aid t~~ a~.ri~l r~rs~~~,;~. ~'~is area rraeas~ares a~~~t haif an a~r~ i~a ~zz~ ar~d i~cl~des se~reral tries. 14. ~n this case, ~itho~at fu her Zvi ~n~~ ~~'~s~, a~ Fl~.x~t~~`fs ih~r~f~~°e have b~~~. ~vilZ~ng to recognize up to 0.5 acres of g~xd~n ~~ the i7efenda3~ts' property. A.~ irrigation duty of 3 aere-feet der acre has usu~ily ~ee~ a~piied to esti~at~ gardenuse in the Zuni River basin. Tl~s d~a~y ~~c~~~.ts fay b~t~ a ty~i~~l irrigatimn require~n~n~ and a~ ~stirr~a~~~ ap~lica~i~~ e~~i~~~~a~~y. ~~sed ~~ Page ~ Of ~ Z Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 8 of 12 aforementianed arrigatian duty, ~ corr~pute Defendants' ~oYal water use for garden irr%gation assac~ated with well 21-~-1-~+I035 tts be 1,5 ~~`~. f`~~►l:Zi~~`ici i ~~Y lTT illf.~ 15, T'he Defendants s;Iairr~ arfl "environmera~a~" water use of 238 gallons per dad car 0.3l 7 A~X {see'`able 1). In the 200$ l~nsruer, the I3efendants state that environmental uses include "fire prote~tic~t~, ~€ddlife and disease cantxo~." Ttegarding "fire pt°eve~tio~" ~r "dire protectic~~," the I~ef~ndaa~ts state in them L7iscovery Response to Interrog~.tories Nta. 2 and I~ia 6 that water as avai~~b1~ from eithex "three external fataceYs" or "five exterior faucets," ~-Io~ever, the Defendants go on ~o say in the L~iscc~very Response to Interrogatory No. 6 that water "has only been u~~d o~c~ far t1~is pur~sose" for a ire that "was small and quickly contained." R.~garding ~vzldlifc use, the TJef~nd~nts state that "birds, deer and sc}uu~rels are frequently a~bsezved drinksng from r~ur sock tanks99 ~ they g€~ on ~o state that 46fa~10 rec~srds are kept on ~~is ~cti~it~v but it is ~ dailg~ r~cca~rr~~nce," T'he i3ef~~d~nts dca ~~st d~s~rih~ ~z~y uses ass~ci~t~d with "disease control.>' ~ 6. The Defendants ha~~ not provided aa~y meas~arerxa~nts, records, or calc~lat~€~ns demonstxat~ng that they have historically used 0.317 AMY from we112~-i- ~I035 for the "environmental" purposes they describe ~ the 20 8 ~rzs~ver az~d Discovery Response. I~3IZCE dies nit have any additional znfar~ation regarding such uses. While ~v~.t~r appears t~ be av~il~ble fc~r fire pr~t~cti~n, i~ his anly Wage ~ of 11 ~~~ Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 9 of 12 been put to such use once, according t~ the ~3efendants, in an un~no~rn ar~c~unt. Furthermore, estirnat~d e~vironra~ental lasses, such as evaporation and vrildli~~ consurnptior~, for ~a~arnpi~, ire in~lud~d ~n tie h~dr~sgra~~ic s~r~e~ as a ~ompc~nent of the livestock wateruse ~alculatian,21-~c,co~-dingly, I conclude that the evidence provided by the I3efendants does not support their claimed environmental uses of water from we112A-1-W035. 17. In sum, after reviewing all ~f the ~.va~labie material ~ancerr~ing Subfil~ Z -4- 0169, I conclude that the Defendants are era~itled ~o a water right for we112A-1- ~N035 in the amount of 2.043 AFY (household-~-x.202 AFY; stock--0.341 AFY; garden-1.50; and environmental--0 AFY) based fl~ the evidence of historic beneficial use. Pursuant to 2~ LT.S.C. § 1746, I declare ua~der penally of perjury that the foxegoing is true ar~d correct. Executed on this 1 Sth day of August, 2016. ~cat~ ~'urnbull Associate Engineer Natuxal Resources ~onsulti~g Engineers, Inc. 131 LAncoln Avenue, S~€ite 30Q Fort Collins, C~ X0524 970-224-1851 ~ The Nydrographzc Szarvey Report for Subareas 1, 2 and 3 Excluding Ramah prepared by NRCE z~ 200b assumed a 0.5 (50%) efficiency factor to accaun~ far c~nsumptiv~ and other losses. This same ~fFiciency factor is applied to estimate the Defendants' total. ]ivestock water use. See ¶1 ~ and Table 2. Page 9 of 9 ~. ~a Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 10 of 12 ~-; ~`~7 V ,,. ~ t~s r ~.,,~ . .. ~ .. ... ~ . -- ~ d.~Y f rr... `~ ~~ ̀ .: ~ _ its a~' .y.T+~rA{~F ~, ~a~', v. '`', ",., j . 'fir"* ~Ir "~'^-, ~~,"M Y 1 r ~w,~{ t ~~' ~ #~." 1~`: tom' 1 ..r ~:. ~:'~ d. ~ .,. y . ._ ~ ~ -~'s. ~ # ~ .~5p.t R ~., ~j ~ `Y?' ~A., t ~ _ ~, a~~. ~s,~` ^+~`~ ~ ... . ~ ; '' ~7 3 ¢ ~ ~~ ~4~ ' ~~ ~~~ ~S. ~~vy#i ..N~ ~'~ 1" ~+..rr.~ '....+V+a'S .I.: .. .` ~~ .: ~'+ ... , ._. r a 1 ='~ r » .... a - .~w i l¢ ~ ., y # ~~y ~, ̀a! ~ C. v ~k' ~~ ~ j ~. L~ Y'~ . t -. ~. w+~ . B ~ qa ~i I ~ 1 -.1-. i ~. r T ~ ~•' O - '\ :11 - ~ ~ • •. - Attachment A - Hydrographic Survey Map for Subfile ZRB-4-0169 Page 10 of 11 ID1ilCII.~Y'1[ Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 11 of 12 Page 11 of 11 ~X~I$I'~ ~ Attachment B - U.S. Department of Agriculture Farm Service Agency (USDA FSA), National Agriculture Imagery Program (NAIP), 1 meter (resolution), May 20, 2014 Case 6:01-cv-00072-MV-WPL Document 3306-2 Filed 08/15/16 Page 12 of 12 Exhibit C Responses to Plaintiffs’ First Joint Discovery Requests Case 6:01-cv-00072-MV-WPL Document 3306-3 Filed 08/15/16 Page 1 of 6 June 7 2016 Samuel D. Gollis U. S. Department of Justice 999 18th St. South Terrace, Suite 370 Denver, CD 880202 Re: Case no-cv-00072-MV-WPL Subfile ZRB-4-0169 Rf: Response to Plaintiffs' First Jaint Discovery Requests. Good Morning Mr. Gollis: In response to your request the following information is enclosed: • Responses to nine interrogatories from Henry R. Grizzle • Responses to nine interrogatories from Rebecca Grizzle • Two Documents responding to RFP No. 1 Six title documents responding to RFP No.2 Sincerely _ ~ ~.~.. Henry R. Grizzle Bx 154 Vanderwagon NM 87326 EXHIBIT C, Page 1 of 5 Case 6:01-cv-00072-MV-WPL Document 3306-3 Filed 08/15/16 Page 2 of 6 Interrogatory No. 1. Very little information about we112A-1-W035 exists. (Referred to hereafter in these interrogatories as the well). At the beginning of this lawsuit over 15 years ago, the state engineer's office had no record of the well. We bought the property in 1989. The well existed then. We leased the property in 1988. The well existed then. The well is believed by community elders to have been drilled in the 1950s but no other information is available. The interrogatory is answered by the defendants, Henry R. and Rebecca J. Grizzle. Interrogatory Igo. 2. Na information exists as to the use of this well prior to 1988. It is known that a house was built on the property in the 1970s. The house was vacant for some time in 1988. From August 1988 through December 1988 we leased the house and used the well for domestic purposes. From 1989 to the present we have used the well for domestic water, watering livestock and gardening. Local wildlife also water in our tanks. Water is also available for fire prevention from three external faucets .From 19$9 unti11994 two homes were served by the well. After 1994 only one home has been served by the well. Livestock are watered year round form this well. The type and number vary from year to year and season to season. The property serves as headquarters for our ranching operation which is mostly on tribal lands. A small flock of sheep and goats (usually around 20) were housed on this property from 1989 to 2002. Ranch horses have been on the property from 1989 to the present. Numbers have varied from year to year and season to season. The lowest number being one in 1989 and the highest number being 18 in1996. In a typical year there are five or six. In 2016 there were 4 horses on the ranch until April, There are currently 2 horses on the property. This number is expected to increase in the month of May 2016. Cattle are not kept in large numbers or for long periods of time on the property. Small numbers of cattle, typically around 6, will be temporarily held after buying, weaning or doctoring. Weaned calves are usually held the longest, typically around 6 months. Newly purchased animals typically are moved to the reservation within a week or so. No solid information exists prior to 1988. The interrogatory is answered by the defendants, Henry R. and Rebecca J. Grizzle. Interrogatoay No. 3. The water was pumped out of the ground with a 1 and one half horsepower pump, through pipes. The water then runs through hoses into fiberglass, polyurethane or galvanized stock tanks. Tanks are located in the barn, paddock, corral and holding pen areas. No solid information exists prior to 1988. The interrogatory is answered by the defendants, Henry R. and Rebecca J. Grizzle. EXHIBIT C, Page 2 of 5 Case 6:01-cv-00072-MV-WPL Document 3306-3 Filed 08/15/16 Page 3 of 6 Interrogatory No 4. Due to the fluid nature of ranching operations, this information would be difficult if not impossible to answer precisely. Our best assessment is as follows; 20 sheep and Goats 12 months per year from 1989 to 2002. 6 cattle 6 months per year 1989 to 2016 An average of 6 horses per year from 1989 through 2016. No solid information exists prior to 1988. The interrogatory is answered by the defendants, Henry R. and Rebecca J. Grizzle. Interrogatory No. 5. In the year 1989 sheep, goats and horses were watered from the well for 12 months. In the years 1990 through 2002 sheep and horses were watered 12 months per year. In the years 1990 through 2002 cattle were watered on an average four months per year. In the years 2003 to the present horses were watered 12 months per year. In the Years 2003 to the present cattle were watered on an average, 6 months per year. No solid information exists prior to 1988. The interrogatory is answered by the defendants, Henry R. and Rebecca J. Grizzle. Interrogatory No. 6. irijater is availai~le from five exterior faucets for fire protection. (It has only been used once for this purpose between the years 1988 and 2016.) The approximate year was 2000. The fire was small and quickly contained, causing no significant damage. Wildlife including birds, deer and squirrels are frequently observed drinking from our stock tanks since they were placed in 1989 to the present time. No records are kept on this activity but it is a daily occurrence. No solid information exists prior to 1988. The interrogatory is answered by the defendants, Henry R. and Rebecca J. drizzle. EXHIBIT C, Page 3 of 5 Case 6:01-cv-00072-MV-WPL Document 3306-3 Filed 08/15/16 Page 4 of 6 Interrogatory No. 7. The following information was provided as requested in 2008. Justification Avg daily use Acre ft/anum Domestic Daily gal Annual gal Household 90 323850 .033 Livestock 105 38325 .039 Garden 1896.45 692204.25 .680 ether Using Harses 300 190,500 1,20 Env 283 103.295 1.20 Totals 2674.5 976,161.35 3.152 The actzral use in gallons (976,161,35) is 18.25gallons less than Three acre feet, S. 6X10- 5 (treat the -5 as a superscript.) acre feet or 56 millionth ofone acre feet. (.000056) This discrepancy probably occurred due to rounding base figures to the nearest.01 gal. It should be disregarded. This information was calculated based on best assessment of usage in the year 20Q7, and is presumed to be reasonable for the years 1988 through 2016. EXHIBIT C, Page 4 of 5 Case 6:01-cv-00072-MV-WPL Document 3306-3 Filed 08/15/16 Page 5 of 6 No solid information exists prior to 1988. The interrogatory is answered by the defendants, Henry R. and Rebecca J. Grizzle.be accurate for the years 1988 through 2016. Interrogatory No 8. ~"he railroad act states specifically, "The railroad shall have the right to develop the resources on the property according to their needs." It is my contention that rational, thoughtful individuals can see water as a need. The interrogatory is answered by the defendants, Henry R. and Rebecca J. Grizzle. Interrogatory No. 9. The following chain of title relates our property to the Railroad Act of 1862. Index of deeds searched (McKinley County Courthouse Gallup New Mexico. McKinley County Clerk's Office Gallup New Mexico Bk 5 page 434 Grantor Santa Fe and Pacific Railroad Grantee Josiah Starrett Aug 26, 1919 Misc. Bk Court Judgments Grantee Frank Mapel Qudgment granted for default of payment by Josiah Starrett) May 241923 Bk 7 page 328 Grantor Frank Mapel Grantee Bernard Vanderwagan (warranty deed) Jan 41943 Bk 19 Pages 467-467 Grantor Bernard Vanderwagon, Grantee Albert C. Diddens, et al. (Warranty deed) January 25,1971. Blc 20 Page 781 Grantor Albert C. Diddens, et. al, Grantee Walter and Elba Sue Monnier (warranty deed August 1972) Bk 10 Page 4710 Grantor Walter and Elba Sue Monnier Grantee Henry Ray and Rebecca J Grizzle. ~Narranty deed 29 Septerriber 1989) Submitted by ~~~. ~ ` -~~~~__ Date (p ~ ~~ EXHIBIT C, Page 5 of 5 Case 6:01-cv-00072-MV-WPL Document 3306-3 Filed 08/15/16 Page 6 of 6