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. . . Western States Water Council Water Resources Committee Minutes Santa Ana Pueblo, New Mexico October 28, 2004 The major issue revolved around a priority right of 1882 (while the acequia wanted 1878), which preceded the USFS OrganiC Act. The consent decree recognizes all existing rights and the vesting of water rights. However, the USFS wanted to require a National Environmental Policy Act (NEPA) review before allowing the diversion to exercise those rights. However, we were afraid that if we signed a special use permit, we would be giving a right-of-way subject to reasonable regulation. We are still butting heads over the right-of-use issue. The controversy might be compared with free speech regulation and. "time and place restrictions." The ditch needs regular maintenance and minor improvements. Timing of approval is an issue. The USFS prohibits any mechanical use in a wilderness area without approval at the regional forester level, but necessary maintenance couldn't wait a month for regional permission. We signed a special use permit "under the gun" that was limited to the new diversion, and got a NEPA categorical exclusion for the work. Under the consent decree, there was a penalty of the loss of one-third of our water per year until a new diversion is completed, With the USFS right-of-way for maintenance and minor improvements, we are about to complete a coordination and cooperation agreement that will allow the parcientes and district ranger to work on this problem. They will jointly derermine winter damage and evaluate the need for work in the spring. They will seek regional approval for the use of chain saws if needed, unless it is an emergency, then the district ranger can approve such use. However, the USFS may define "urgency" differently than would an acequia facing the loss of crops. We are at the point of defining "emergency" and "urgency." RS 2339 is a general grant under territorial law , a Congressional grant, regarding the vesting of rights-of-way. We argued we had an established property right equal to the USFS right to regulate. We asked, "What is reasonable regulation? What you have always done?" RS 2339 has usually been used in relation to maintenance of county roads. Dale Frink asked about the relationship between regulation and special use permits. Margret responded that their vested right preceded the Organic Act reservation. Chuck DuMars explained in greater detail the significance of the conflict between cultural uses and new USFS values and regulations. "Many still feel the use of public land is their right." Margret observed the USFS doesn't understand that the special use permit didn't/can't circumscribe the acequia's vested right. However, we were convinced we didn't want to litigate the issue, and if we won the USFS could lose any authority to approve maintenance work. The acequia didn't want to litigate as the parcientes wanted to maintain a good working relationship with the district ranger - and explain their rights. 9