Pueblo of Jemez v. United States

• Decision Date: 27 September 2019
• Docket Number: No. CIV 12-0800 JB\JHR,CIV 12-0800 JB\JHR
• Citation: Pueblo of Jemez v. United States, 430 F. Supp. 3d 943 (D. N.M. 2019)
• 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

430 F.Supp.3d 943

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\JHR

United States District Court, D. New Mexico.

Filed September 27, 2019

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 IntervenorDefendant.

MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER¹

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the bench trial held on October 29-November 20, 2018; November 29-November 30, 2018; December 3, 2018; December 5, 2018; and December 13, 2018.The primary issue is whether Plaintiff Pueblo of Jemez has the exclusive right to use, occupy, and possess the lands of the Valles Caldera National Preserve ("Valles Caldera") pursuant to its allegedly unextinguished and continuing aboriginal title to those lands.The Court concludes that Jemez Pueblo has not established aboriginal title to the Valles Caldera.Although the evidence proves that Jemez Pueblo has actually and continuously used and occupied the Valles Caldera for a long time, the evidence also shows that many Pueblos and Tribes also used the Valles Caldera in ways that defeat Jemez Pueblo's aboriginal title claim.

FINDINGS OF FACT

All parties have submitted proposed findings of fact.SeePlaintiff's, Defendant's, and Defendant-In-Intervention New Mexico Gas Company's Joint Proposed Findings of Fact and Conclusions of Law, filed April 15, 2019(Doc. 384)("Joint Proposed Findings");Plaintiff Pueblo of Jemez's Proposed Findings of Fact, filed April 15, 2019(Doc. 388)("Jemez Pueblo's Proposed Findings"); United States' Proposed Findings of Fact, filed April 15, 2019(Doc. 386)("United States' 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.²

1.The Valles Caldera Geology.³

1.The Valles Caldera is a volcanic crater in the center of the Jemez Mountains, State of New Mexico.SeeTrial Transcriptat 75:1-5(taken Oct. 29, 2018), filedDecember 20, 2018(Doc. 337)("Oct.29 Tr.")(Fogleman);Pueblo of Jemez Expert Witness Report by William Foglemanat 4-5(undated), admitted October 29, 2018, at trial as Jemez Pueblo'sEx. 187("Fogleman Report").

2.Approximately 1.2 million years ago, a series of volcanos erupted, which spread ash and pyroclastic flow⁴ that drained out the top part of the magma chamber.⁵See

Oct.29 Tr. at 75:1-13(Fogleman);Fogleman Reportat 4;Pueblo of Jemez v. United States, Memorandum Opinion and Orderat 2 n.1, filedOctober 25, 2018 (Doc. 317)("Oct. 25 MOO"), 350 F. Supp. 3d 1052, 1056 n.1(D.N.M.2018)(Browning, J.).

3.Volcanologists classify the Valles Caldera as a young caldera.⁶SeeOct.29 Tr. at 75:1-2(Fogleman);Fogleman Reportat 4.

4.The Valles Caldera is an active volcano.See, e.g., Oct.29 Tr. at 75:1-2(Fogleman);Fogleman Reportat 4-5.

5.The volcano's upper magma chamber lacked magma, which effected a collapse that resulted in the empty crater that today is known as the Valles Caldera.SeeOct.29 Tr. at 75:1-13(Fogleman);Fogleman Reportat 4-5;Pueblo of Jemez v. United States, Oct.25 MOO at 2 n.1, 350 F. Supp. 3d at 1056 n.1.

6.After the magma chamber collapsed, a lake formed over the caldera floor.SeeOct.29 Tr. at 75:25-76:5(Fogleman);Fogleman Reportat 5.

7.The lake drained from the caldera when the caldera's southwest rim eroded.SeeOct.29 Tr. at 76:20-25(Fogleman).

8.The caldera lake's drainage helped to form the Jemez River valley.SeeOct.29 Tr. at 76:22-77:11 (Fogleman);Fogleman Reportat 7.

9.The caldera rim's southwest region is the caldera base's lowest elevation.SeeOct.29 Tr. at 77:12-19(Fogleman);id.at 85:5-12.

10.The Jemez River headwaters are in the Valles Caldera.SeeTrial Transcriptat 1813:5-6(taken Nov. 6, 2018), filedJanuary 15, 2019(Doc. 343)("Nov.6 Tr.")(Ferguson).

11.The East Fork Jemez River waters, which include Jaramillo Creek, La Jara Creek, Redondo Creek, Rito de los Indios, San Antonio Creek, and Sulphur Creek, flow into the Jemez River.SeeFogleman Reportat 7.

12.Springs, streams, and rivers are an expression of groundwater elevation.SeeOct.29 Tr. at 84:12-24(Fogleman).

13.A spring or river is where groundwater is exposed to the land surface, and such areas are marshy.SeeOct.29 Tr. at 84:12-24(Fogleman).

14.The caldera rim is approximately twelve to thirteen miles in diameter.SeeOct.29 Tr. at 76:12-15(Fogleman);Fogleman Reportat 4.

15.Redondo Peak is a resurgent magma dome that formed when magma pushed up the caldera floor.SeeOct.29 Tr. at 75:25-76:5(Fogleman);id.at 85:13-22(Fogleman);Fogleman Reportat 5.

16.The caldera's elevation ranges from 7,000 feet in the southwest region to 11,254 feet at Redondo Peak.⁷SeeOct.29 Tr. 77:12-19(Fogleman);Fogleman Reportat 4.

17.The Valles Caldera includes four of Merriam's life-zones:⁸(i) the Subalpine Zoneat 9,500 to 11,500 feet, which has cooler temperatures, and allows for Spruce trees and Fir forests, and wildlife that includes bighorn sheep and unique small animal species which tend to live at higher elevations; (ii) the Coniferous Forest Zoneat 8,500 to 9,500 feet, which is the caldera's predominant zone and consists of hydrologic features and wildlife that includes beavers, raccoons, black bear, and elk; (iii) the Mountain Transition Zoneat 7,000 to 8,500 feet, which permits predominately Ponderosa pine and Douglas fir, and wildlife that includes mule deer and horned owl; and (iv) the Grassland/Woodlands Zoneat 4,500 to 7,000 feet, which permits tall grasslands and wildlife that includes turkey, jackrabbits, foxes, and mountain lions.SeeOct.29 Tr. at 79:12-82:4(Fogleman);Fogleman Reportat 5-6.

18.Most of the Valles Caldera is inside the caldera rim, including four high-mountain valleys and at least ten volcanic domes, which are located within the Valles Caldera's exterior boundaries as Congress established pursuant to the Valles Caldera Preservation Act, 114 Stat. 598.SeeValles Caldera Preservation Act of 2000, 16 U.S.C. §§ 698v - 698v-10(repealed 2014)("Preservation Act").⁹

2.Valles Caldera Conveyances.¹⁰

19.When the Treaty of Guadalupe Hidalgo ended the Mexican-American War in 1848, the United States formally acquired New Mexico, which was subsequently organized under a territorial government.SeeKurt Anschuetz and Thomas Merlan, More Than a Scenic Mountain Landscape: Valles Caldera National Preserve Land Use History 27 (dated 2007), admitted October 29, 2018, at trial as United States' Ex. DX-KX ("VCNP Land Use History").

20.In the Act of June 21, 1860, 12 Stat. 71, Congress authorized Luis Maria de Baca's heirs to select up to five square tracts of vacant land within the New Mexico Territory totaling up to 496,447 acres.¹¹SeeAct of June21, 1860, 12 Stat. 71("1860 Act");Trial Transcriptat 3516:17-18(taken Nov. 15, 2018), filedFebruary 11, 2019(Doc. 357)("Nov.15 Tr.")(García y Griego);Pueblo of Jemez Expert Witness Report by Terence Kehoeat 10(dated March 23, 2018), admitted October 29, 2018, at trial as Jemez Pueblo'sEx. 193("Kehoe Report").

21.In December, 1860, the Baca heirs selected their first parcels -- known as "Baca LocationNo. 1" -- an area totaling approximately 99,289 acres of land in and adjacent to the Valles Caldera.Pueblo of Jemez v. United States, Oct.25 MOO at 7, 350 F. Supp. 3d at 1060(citingUnited States v. Redondo Dev. Co., 254 F. 656, 657(8th Cir.1918) ).

22.On September 30, 1876, the General Land Office approved the first Baca LocationNo. 1 survey.SeeSurveyor General's Office, Santa Fe, New Mexico, Field Notes of the Survey of Baca Location No. 1at 15(dated Sept. 30, 1876), admitted October 29, 2018, at trial as United States' Ex. DX-Q.

23.In January, 1899, the District Court of the County of Bernalillo, Territory of New Mexico, ordered Baca LocationNo. 1's sale at public auction to the highest bidder.SeeKehoe Reportat 13.

24.On March 18, 1899, the District Court of the County of Bernalillo, Territory of New Mexico approved Baca LocationNo. 1's sale to Frank Clancy, who on the same day sold Baca LocationNo. 1 to the Valles Land Company, which Mariano Otero and his son owned.SeeKehoe Reportat 13;Order Approving Report and Confirming Sale, Whitney v. Oteroat 1-2(dated March 18, 1899), admitted October 29, 2018, at trial as United States' Ex. DX-Y;Bargain & Sale Deed, F. Clancy to Valles Land Co.at 100(dated March 18, 1899), admitted October 29, 2018, at trial as United States' Ex. DX-X.

25.On October 16, 1909, the Valles Land Company deeded Baca LocationNo. 1 to the Redondo Development Company, which concluded its purchase in 1913 after completing a series of installment payments totaling $247,512.00.SeeWarranty Deed, Valles Land Co. to Redondo Development Co.at 102(dated Oct. 16, 1909), admitted October 29, 2018, at trial as United States' Ex. DX-AH;Deed of Trust, Redondo Development Co. to W. Strickler, Trustee...