Pueblo of Jemez v. United States, No. CIV 12-0800 JB\JHR

• Court: United States District Courts. 10th Circuit. District of New Mexico
• Writing for the Court: James O. Browning, UNITED STATES DISTRICT JUDGE
• Citation: 430 F.Supp.3d 943
• Docket Number: No. CIV 12-0800 JB\JHR
• Decision Date: 27 September 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.

430 F.Supp.3d 943

PUEBLO OF JEMEZ, a federally recognized Indian Tribe, Plaintiff,
v.
UNITED STATES of America, Defendant,
and
New Mexico Gas Company, Defendant-in-Intervention.

No. CIV 12-0800 JB\JHR

United States District Court, D. New Mexico.

Filed September 27, 2019

430 F.Supp.3d 953

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, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER ¹

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.

430 F.Supp.3d 954

FINDINGS OF FACT

All parties have submitted proposed findings of fact. See Plaintiff'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. 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").

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.⁵ See

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Oct. 29 Tr. at 75:1-13 (Fogleman); Fogleman Report at 4; Pueblo of Jemez v. United States, Memorandum Opinion and Order at 2 n.1, filed October 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.⁶ See Oct. 29 Tr. at 75:1-2 (Fogleman); Fogleman Report at 4.

4. The Valles Caldera is an active volcano. See, e.g., Oct. 29 Tr. at 75:1-2 (Fogleman); Fogleman Report at 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. See Oct. 29 Tr. at 75:1-13 (Fogleman); Fogleman Report at 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. See Oct. 29 Tr. at 75:25-76:5 (Fogleman); Fogleman Report at 5.

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

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

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

430 F.Supp.3d 956

430 F.Supp.3d 957

10. The Jemez River headwaters are in the Valles Caldera. See Trial Transcript at 1813:5-6 (taken Nov. 6, 2018), filed January 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. See Fogleman Report at 7.

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

430 F.Supp.3d 958

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

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

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

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

17. The Valles Caldera includes four of Merriam's life-zones:⁸ (i) the Subalpine Zone at 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 Zone at 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 Zone at 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 Zone at 4,500 to 7,000 feet, which permits tall grasslands and wildlife that includes turkey, jackrabbits, foxes, and mountain lions. See Oct. 29 Tr. at 79:12-82:4 (Fogleman); Fogleman Report at 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. See Valles 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. See Kurt 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

430 F.Supp.3d 959

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

21. In December, 1860, the Baca heirs selected their first parcels -- known as "Baca Location No. 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 (citing United 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 Location No. 1 survey. See Surveyor General's Office, Santa Fe, New Mexico, Field Notes of the Survey of Baca Location No. 1 at 15 (dated Sept. 30, 1876), admitted...