Pueblo of Jemez v. United States

• Decision Date: 02 September 2020
• Docket Number: No. CIV 12-0800 JB\JFR,CIV 12-0800 JB\JFR
• Citation: 483 F.Supp.3d 1024
• Parties: PUEBLO OF JEMEZ, a federally recognized Indian Tribe, Plaintiff, v. UNITED STATES of America, Defendant, and New Mexico Gas Company, Defendant-in-Intervention.
• Court: U.S. District Court — District of New Mexico

483 F.Supp.3d 1024

PUEBLO OF JEMEZ, a federally recognized Indian Tribe, Plaintiff,

v. UNITED STATES of America, Defendant,andNew Mexico Gas Company, Defendant-in-Intervention.

No. CIV 12-0800 JB\JFR

United States District Court, D. New Mexico.

Filed September 2, 2020

Frederick R. Petti, Petti and Briones, PLLC, Scottsdale, Arizona --and-- Thomas E. Luebben, Jr., Law Offices of Thomas E. Luebben, Sandia Park, New Mexico --and-- Randolph H. Barnhouse, Kelli J. Keegan, Justin J. Solimon, Christina S. West, Karl E. Johnson, Veronique Richardson, Dianna Kicking Woman, Tierra Marks, Michelle T. Miano, Barnhouse Keegan Solimon & West LLP, Los Ranchos de Albuquerque, New Mexico, Attorneys for the Plaintiff.

Jeffrey Wood, Acting Assistant Attorney General, Peter K. Dykema, Matthew Marinelli, Jacqueline M. Leonard, Amarveer Brar, Kenneth Rooney, Kristofor R. Swanson, Natural Resources Section, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C., Attorneys for Defendant United States of America.

Kirk R. Allen, Elizabeth Reitzel, Miller Stratvert P.A., Albuquerque, New Mexico, Attorneys for the Intervenor Defendant.

MEMORANDUM OPINION AND ORDER ¹

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Plaintiff Pueblo of Jemez’ Opposed Motion and Memorandum in Support of its Motion to Reconsider and Alter Final Decision, filed September 28, 2019 (Doc. 405), filed in redacted form October 7, 2019 (Doc. 409)("Motion"). The Court held hearings on the Motion on December 12, 2019, January 28, 2020, and February 18, 2020. See Clerk's Minutes at 1, filed December 12, 2019 (Doc. 436); Clerk's Minutes at 1, filed January 28, 2020 (Doc. 444); Clerk's Minutes at 1, filed February 18, 2020 (Doc. 449). The primary issue is whether Plaintiff Pueblo of Jemez is entitled to aboriginal title to: (i) Banco Bonito; (ii) Redondo Meadows; (iii) the western two-thirds of Valle San Antonio; and (iv) sub-areas on Redondo Mountain. The Court concludes that: (i) rule 59(e) of the Federal Rules of Civil Procedure bars Jemez Pueblo from seeking title to areas other than Banco Bonito; (ii) Jemez Pueblo may not seek aboriginal title to very small sub-areas when it has not proven aboriginal title to the surrounding areas; (iii) Jemez Pueblo's Valle San Antonio use was not exclusive; (iv) Jemez Pueblo's Redondo Meadows use was not exclusive; (v) Jemez Pueblo has not established aboriginal title to the geothermal project area within the Valles Caldera; and (vi) Jemez Pueblo has not established aboriginal title to Banco Bonito.

SUPPLEMENTAL FINDINGS OF FACT

All parties have submitted proposed findings of fact. See United States’ Proposed Findings of Fact and Conclusions of Law on Reconsideration, filed March 20, 2020 (Doc. 450)("U.S. Proposed Findings"); Plaintiff Pueblo of Jemez's Proposed Supplemental Findings of Fact and Supplemental Conclusions of Law, filed March 20, 2020 (Doc. 451)("Jemez Pueblo Proposed Findings"). The Court has carefully considered all three sets of proposed findings and accepts some of those findings, rejects some, and finds some facts that no party brought to its attention. The Court sets forth its findings below.

1. The Valles Caldera National Preserve's Geography.

572. The Valles Caldera is a volcanic crater in the center of the Jemez Mountains in the State of New Mexico.² See Trial Transcript at 75:1-5 (taken Oct. 29, 2018), filed December 20, 2018)(Doc. 337)("Oct. 29 Tr.")(Fogleman); Pueblo of Jemez Expert Witness Report by William Fogleman at 4-5 (undated), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. 187 ("Fogleman Report").

573. The caldera rim is approximately twelve to thirteen miles in diameter. See Oct. 29 Tr. at 76:12-15 (Fogleman); Fogleman Report at 4.

574. Banco Bonito is a geographic area in the Valles Caldera's southwestern corner. See Valles Caldera National Preserve Map at 1, (undated), admitted December 3, 2018, at trial as United States’ Ex. DX-VG.

575. To Banco Bonito's north is Redondo Border, Redondo Meadows, and Redondo Creek. See Valles Caldera National Preserve Map at 1.

576. Redondo Creek flows through Redondo Meadows, immediately north of Banco Bonito. See Valles Caldera National Preserve Map at 1.

577. Immediately northeast of Banco Bonito is Redondo Peak, which is the tallest mountain in the Valles Caldera. See Valles Caldera National Preserve Map at 1; Oct. 29 Tr. at 77:12-19 (Fogleman); Fogleman Report at 4.

578. East of Banco Bonito is South Mountain and the Valle Grande, a large meadow. See Valles Caldera National Preserve Map at 1.

579. In July, 2000, the United States purchased approximately 90,000 acres within and surrounding the Valles Caldera to create the Valles Caldera National Preserve. See Warranty Deed and Assignment of Rights Under Warranty Deed and Reciprocal Conservation and Access Easement between Dunigan Enterprises et al. and United States of America at 1 (July 25, 2000), admitted October 29, 2018, at trial as United States’ Ex. DX-IG. See also Pueblo of Jemez v. United States, 430 F. Supp. 3d 943, 1031 n.120 (D.N.M. 2019) (Browning, J.).

580. Jemez Pueblo and historic Jemez villages are directly south of Banco Bonito, and further south is Pueblo of Zia. See Oct. 30 Tr. at 447:16-448:12 (taken Oct. 30), filed December 20, 2018 (Doc. 338)("Oct. 30 Tr.")(Liebmann); Pueblo of Jemez Expert Witness Report by Dr. Matthew Liebmann at 8 (March 23, 2018), admitted Oct. 29, 2018, at trial as Jemez Pueblo's Ex. PX-188 ("Liebmann Report"); Pueblo of Jemez v. United States, 430 F. Supp. 3d at 964 (mapping Pueblos and Tribes surrounding the Valles Caldera).

2. Other Tribes’ and Pueblos’ Historic Use of the Valles Caldera.

581. There are two historic Tewa settlements in close proximity -- but outside -- the Valles Caldera. See Anschuetz Rebuttal Report at 14; Trial Tr. at 4275:9-16 (taken November 19, 2018), filed February 12, 2019 (Doc. 359)("Nov. 19 Tr.")(Anschuetz, Marinelli).

582. Those Tewa fieldhouses are to the southeast of the Valles Caldera, and Banco Bonito is in the southwest.³ See Ana Steffen Rebuttal Report of Liebmann Report at 5 (dated May 21, 2018), admitted October 29, 2018, at trial as United States’ Ex. DX-RZ ("Steffen Rebuttal Report").

583. Other Tribes view the entire Valles Caldera as sacred and use the Valles Caldera for their cultural purposes. See e.g., Trial Transcript at 5072:8-25 (taken Dec. 3, 2018), filed February 18, 2019 (Doc. 363)("Dec. 3 Tr.")(Anschuetz, Marinelli)(testifying that the Pueblo of San Felipe's traditionally used land include "the entirety" of the Valles Caldera); id. at 4086:7-12 (Kehoe)(testifying that Jicarilla Apache's 1958 aboriginal title claim included the Valles Caldera's entirety); id. at 2781:24 (Suina)(agreeing that the entire Valles Caldera is an area of religious and cultural significance to the Pueblo of Cochiti); Kurt Anschuetz, Ph.D. Expert Report at 191 (March 22, 2018), admitted October 29, 2018, at trial as United States’ Ex. DX-RP ("Anschuetz Report")("Members of several affiliated communities, including Zia, Santa Clara, San Ildefonso, and Kewa are known to have gathered varied plant resources, hunted game animals, harvested birdfeathers, and collected rocks and minerals in the Valles Caldera. Some locations ... are marked with shrines shared by different communities."); id. at 163-91 (discussing numerous Tribe's pilgrimages, ceremonies, shrines, pathways, and agricultural and cultural practices within the Valles Caldera); Pueblo of Santa Clara v. United States, Dkt. 356, Map of Santa Clara Pueblo's Aboriginal Lands Claim prepared by the Bureau of Land Management at 1 (dated July, 1967), admitted October 29, 2018, at trial as United States’ Ex. DX-DO (illustrating that Pueblo of Santa Clara's 1967 aboriginal title claim extends well into the Valles Caldera but do not entirely encompass it); Nov. 19 Tr. at 4090:23-4091:7 (Kehoe)(testifying that Santa Clara Pueblo, Jicarilla Apache, and Pueblo of San Ildefonso had all filed claims for some portion of the Valles Caldera).

584. Tribes’ hunted and gathered throughout the Valles Caldera. See, e.g., Florence Hawley Ellis, Religious Freedom of Zia and Jemez Pueblos vs. Use of Geothermal Power from Mt. Redondo at 47 (June 1981), admitted November 29, 2018, at trial as United States’ Ex. DX-FC ("Religious Freedom")(describing [Redacted] as a hunting ground for Zia Pueblo); id. at 58, 69, 76 (describing Zia Pueblo's herb gathering [Redacted]); Valles Caldera National Preserve Map (illustrating [Redacted] hunting); Pueblos of Zia, Jemez, and Santa Ana v. ICC, Docket No. 137, Transcript of Testimony at 52 (taken Dec. 5, 1956)(Mann, Toya), admitted October 29, 2018, at trial as United States’ Ex. DX-CK ("Zia, Jemez, and Santa Ana Pueblos v. ICC")(noting that Pueblo of Santa Ana and Zia Pueblo shared hunting areas in the Valles Seco with Jemez Pueblo).

585. Zia Pueblo occupied the Valles Caldera before Jemez Pueblo. See Trial Transcript at 2042:18-2045:12 (taken Nov. 7, 2018), filed January 15, 2019 (Doc. 344)(J. Lucero)("Nov. 7 Tr."); Trial Tr. at 4832:6-13 (taken Nov. 30, 2018), filed February 18, 2019 (Doc. 362)("Nov. 30 Tr.")(Anschuetz); Interview with Governor Carl Brent Schildt, Lt. Governor Jerome Lucero, and Francisco Toribio, with Joseph A. Little, Eq., and Lisa A. Franceware, Esq., Pueblo of Zia at 2 (Nov. 11, 2017), admitted October 29, 2018, at trial as United States’ Ex. DX-RI (stating that Zia Pueblo came "through Mesa Verde and Chaco Canyon, and into the Jemez Mountains as the First Zia People searched for their home at the site of the Pueblo where we know it to be today")("Zia Interview"); Pueblo of Jemez v. United States, 430 F. Supp. 3d at 965 n.17.

586. Zia Pueblo has used the Valles Caldera from "time immemorial" through at least 1981. Nov. 30 Tr. at 4701:19 (Anschuetz)(paraphrasing Zia Pueblo Governor Lucero past comments as "Zia has a cultural, historical relationship [with the Valles Caldera]...