Judge finds flaw in Gila diversion approval process

Former Interstate Stream Commission director Norm Gaume speaks out against proposals that call for the diversion of a portion of the Gila River during a November 2014 rally in Albuquerque. Susan Montoya Bryan/Associated Press file photo

A state district judge has ruled that the Interstate Stream Commission violated the Open Meetings Act when approving two multimillion-dollar contracts involving a controversial diversion project on the Gila River in southwestern New Mexico.

Norm Gaume, a former director of the Interstate Stream Commission, filed a lawsuit last year alleging the commission had violated the act in several ways, including by having four of nine commissioners on a subcommittee make decisions in secret and by awarding contracts without providing the public with an opportunity to give input.

District Judge Francis J. Mathew of Santa Fe ruled Oct. 13 that the full commission, appointed by Gov. Susana Martinez, must retroactively approve the contracts with engineering firm Bohannan Huston ($1.4 million) and RJH Consultants ($2 million) for work on the project to divert water from the Gila River.

The commission is scheduled to ratify those contracts and several other previously awarded contracts at a public meeting Tuesday in Albuquerque.

In a partial win for the state, Mathew ruled that the commission’s approval of the contracts in public meetings before they were signed did not violate the state procurement code. He also ruled that the commission’s Gila subcommittee did not violate the state’s Open Meeting Act.

Both sides claim they prevailed in the case and are trying to recover legal costs and court fees from each other.

The state is seeking $199,656 from Gaume for the fees of private attorneys hired by the Interstate Stream Commission, but it is not seeking reimbursement for thousands of dollars for staff attorney work hours because “they are public servants,” according to the state’s motion.

Gaume’s attorneys are seeking reimbursement of $267,631 from the state.

Susan Boe, executive director of the New Mexico Foundation for Open Government, called it a bad move for the state to try to make a private citizen pay for a case that seeks compliance with the state’s sunshine law.

But it is not the first time the Interstate Stream Commission has gone after Gaume financially. In December 2014, the commission filed a counterclaim against Gaume that sought payment for its costs in fighting a restraining order he had filed against the panel.

Gaume called the commission’s claim a “strategic lawsuit against [public] participation.” Such SLAPP actions, as they are known, are filed to prevent citizens from speaking out against the government. The state dropped that lawsuit.

“That SLAPP lawsuit was pretty outrageous,” Boe said. “Liberal enforcement against a citizen is really going to chill these actions.”

Brian Egolf, one of Gaume’s attorneys and a state legislator from Santa Fe, also called the commission’s action in seeking legal fees “outrageous.”

“I am unaware of any other time in the history of New Mexico when the government has pursued an individual citizen for a SLAAP suit type of recovery,” he said.

To recover fees in the case, the state will have to prove it was the “prevailing” party and that Gaume knowingly filed a frivolous lawsuit.

Gaume said none of this had to happen. “All they had to do from the very beginning was to comply with the Open Meetings Act as I requested,” he said.

The case began over a long-running attempt by the state to tap into $100 million in federal funds available under a 2004 Arizona Water Settlement Act to develop more sustainable water supplies in four southwestern New Mexico counties.

About $66 million was available for any type of water project, such as municipal conservation, a regional water system or a river diversion. Another $34 million was available only if New Mexico decided to divert surplus water from the Gila River — up to 14,000 acre-feet a year.

The state had until December 2014 to tell the Department of the Interior if it planned to build a river diversion.

Interstate Stream Commission staff spent a decade holding public meetings, hiring engineers to conduct studies and pushing for the river diversion. Former Interstate Stream Commission director Esteván Lopez, now the head of the U.S. Bureau of Reclamation, was in favor of the diversion if it proved feasible.

River advocates and environmentalists opposed the diversion. Some towns, such as Silver City, proposed alternatives, including a regional water system and watershed restoration projects. Irrigators in regions like the Cliff-Gila Valley and communities such as Deming supported a river diversion project.

In early 2014, after going through all the reports about the diversion, Gaume became convinced that commission staff couldn’t prove its case. In repeated meetings, he told the commissioners that after a decade of work, the commission’s staff still couldn’t show a river diversion would be financially feasible or produce the promised water.

He also questioned the meetings of the Gila subcommittee, believing its members were meeting in secret to make de facto decisions about spending the available federal dollars under the settlement agreement and approving contracts without public input.

Gaume filed his Open Meetings Act lawsuit a year ago and requested a temporary restraining order to prevent the commission from making decisions until the Open Meetings Act issue was resolved. A judge allowed the restraining order. When Gaume decided he couldn’t put up a $60 million bond to keep the restraining order in place, it was dismissed, Egolf said.

The Interstate Stream Commission voted in late November 2014 to approve the river diversion project, which means the bulk of the $100 million in federal money will go toward that project. Gaume and others have argued that it will be nowhere near enough to cover the cost of such a diversion and a reservoir to hold the water, leaving questions about who will pay the balance.

Topper Thorpe, an Interstate Stream Commission member and an irrigator in the Cliff-Gila Valley who would benefit from a diversion, abstained from the vote. However, he said Thursday in a phone interview from his home that “I don’t think there’s any question but that a diversion will benefit the four western counties.”

“I think we have gotten a lot of very good information from the ISC staff,” Thorpe said. “The key is there has been no final definition of the project, and therefore there can be no final definition of cost. Until then, the figures being thrown around are not necessarily valid.”

While his case made its way through the court, Gaume continued to speak out against the diversion project.

In testimony before the state legislative Water and Natural Resources Committee on Aug. 31, Gaume said the state has spent $5 million since 2004 investigating the river diversion project. Yet, “they have met with failure at every turn in defining a project that is technically feasible.”

A recent study by the Bureau of Reclamation found the cost to build the diversion could run $320 million and that piping the water to Deming would cost more than $800 million.

“The ISC, after spending 10 years and approximately five million dollars … doesn’t have any answers to the key questions: How much water, for whom, at what cost, paid by whom?” Gaume told the committee. “Why?”

Contact Staci Matlock at 986-3055 or smatlock@sfnewmexican.com. Follow her on Twitter @StaciMatlock.