TUES: Western states propose settlement over Rio Grande Water management + More – KUNM

Western states propose deal over beleaguered Rio Grande — Susan Montoya Bryan, Associated Press
New Mexico, Texas and Colorado have negotiated a proposed settlement that they say will end a yearslong battle over management of one of the longest rivers in North America, but the federal government and two irrigation districts that depend on the Rio Grande are objecting.
New Mexico Attorney General Hector Balderas on Tuesday announced that the states had brokered a deal following months of negotiations. While the terms remain confidential, his office called it “a comprehensive resolution of all the claims in the case.”
“Extreme drought and erratic climate events necessitate that states must work together to protect the Rio Grande, which is the lifeblood of our New Mexico farmers and communities,” Balderas said in a statement. “And I’m very disappointed that the U.S. is exerting federal overreach and standing in the way of the states’ historic water agreement.”
Attorneys with the U.S. Department of Justice and irrigation districts that serve farmers downstream of Elephant Butte reservoir argued that the proposal would not be a workable solution. The river is managed through a system of federal dams and canals under provisions of a water-sharing agreement that also involves Mexico.
The case has been pending before the U.S. Supreme Court for nearly a decade. Texas has argued that groundwater pumping in southern New Mexico has reduced river flows, limiting how much water makes it across the border. New Mexico argues that it has been shorted on its share of the river.
New Mexico and the other states plan in the coming weeks to submit their motion to move the proposed settlement forward, opening the door for federal officials and the irrigation districts to respond.
Another hearing has been scheduled for January.
The battle over the Rio Grande has become a multimillion-dollar case in a region where water supplies are dwindling due to increased demand along with drought and warmer temperatures brought on by climate change.
So far, New Mexico has spent roughly $21 million on lawyers and scientists over the last nine years.
Last fall, the special master overseeing the case presided over the first phase of trial, which included testimony from farmers, hydrologists, irrigation managers and others. More technical testimony was expected to be part of the next phase, which has now been put off.
Earlier this year, some of the river’s stretches in New Mexico marked record low flows, resulting in some farmers voluntarily fallowing fields to help the state meet downstream water-sharing obligations.
In the Elephant Butte Irrigation District, officials recently warned farmers that they can likely expect another late start to the irrigation season in 2023 and that allotments will be low again since the system depends less on summer rains and more on spring runoff from snowmelt in southern Colorado and northern New Mexico.
US sued over lack of protection plan for rare grouse — Susan Montoya Bryan, Associated Press
An environmental group is suing U.S. wildlife managers, saying they have failed to protect a rare grouse found in parts of the Midwest that include one of the country’s most prolific areas for oil and gas development.
A lawsuit filed Tuesday by the Center for Biological Diversity says the U.S. Fish and Wildlife Service is nearly five months late in releasing a final rule outlining protections for the lesser prairie chicken.
Once listed as a threatened species, the prarie chicken’s habitat spans parts of New Mexico, Colorado, Texas, Oklahoma and Kansas — including a portion of the oil-rich Permian Basin that straddles the New Mexico-Texas state line.
Environmentalists have been pushing to reinstate federal protections for years. They consider the species severely threatened, citing lost and fragmented habitat as the result of oil and gas development, livestock grazing, farming and the building of roads and power lines.
The Fish and Wildlife Service in 2021 proposed listing the southern population in New Mexico and the southern reaches of the Texas Panhandle as endangered and those birds in the northern part of the species’ range as threatened. The agency had a deadline of June 1.
“The oil and gas industry has fought for decades against safeguards for the lesser prairie chicken, and the Fish and Wildlife Service is late issuing its final rule,” said Michael Robinson, a senior conservation advocate with the environment group. “The agency has slow-walked every step, and these imperiled birds keep losing more habitat.”
The Fish and Wildlife Service on Tuesday cited its policy for not commenting on pending litigation.
The species was once thought to number in the millions. Now, surveys show, the five-year average population across the entire range hovers around 30,000 individual birds.
Landowners and the oil and gas industry say they have had success with voluntary conservation programs aimed at protecting habitat and boosting the bird’s numbers. The Western Association of Fish and Wildlife Agencies, which oversees the conservation effort, has yet to report the results of the 2022 survey done earlier this year.
With a listing under the Endangered Species Act, officials have said that landowners and oil companies already participating in the voluntary conservation programs wouldn’t be affected because they already are taking steps to protect habitat. However, a listing would prevent any activities that result in the loss or degradation of existing habitat.
The species’ regulatory history dates to an initial petition for protection in 1995.
A little smaller and lighter in color than the greater prairie chicken, the lesser prairie chicken is known for spring courtship rituals that include flamboyant dances by the males and a cacophony of clucking.
NM scientists work to understand 2020’s mass bird die-off and prevent another one – Sara Van Note, Source New Mexico 
As summer turned to fall in 2020, people from Taos to Las Cruces reported unusual clusters of dead songbirds. Golden warblers, iridescent swallows, pale flycatchers and others were found scattered on riverbanks, huddled under barn eaves and strewn on playing fields.
The birds perished during their long migration from summer breeding grounds in the U.S. and Canada to wintering grounds in southern New Mexico, Mexico, and Central and South America.
The stakes are high for western birds, which are particularly vulnerable during migration. An October report from science and conservation organizations warns of the “widespread loss” of birds across the U.S., including western forest birds, which declined by almost 20% since 1970.
New Mexico scientists are looking for ways to protect migrating birds from another mass die-off. Scientists at the Los Alamos National Laboratory researched the factors that led to the unprecedented 2020 event, and released a 2022 study examining drought impacts on birds.
Patricia Cutler is a wildlife biologist at White Sands Missile Range who fielded numerous reports of dead birds from August through October of 2020. She collected over 400 dead birds from the range, and received reports of even more that she was unable to collect.
Though at first they didn’t know what caused the deaths, she knew it was “abnormal.” She and other scientists studied bird carcasses found on the range and elsewhere in southern New Mexico, counting 59 different species. Of the birds they could analyze, nearly all had zero fat.
“Migration is really stressful for birds in the first place,” Cutler said, and it’s a time they lose weight on their arduous journeys. “But to find this many birds with no fat, that was concerning.”
Federal labs that examined birds collected in 2020 found evidence they died of starvation and hypothermia, with many birds “severely emaciated.”
Though a storm front and cold snap preceded many of the bird deaths, scientists say the real culprit was climate change. The summer of 2020 saw widespread drought throughout New Mexico, part of a 20-year, region-wide megadrought.
And the Rio Grande, an important migratory corridor, has seen dramatic impacts from climate change in recent decades, with miles-long stretches of the river drying each year.
One outcome of long-term drought is fewer food resources, both seeds and insects, Cutler said. And critical stopover habitat, where birds can rest and refuel, has been lost across the West, she added. Smoke from the record-setting California wildfires in 2020, Cutler said, might have caused birds to migrate early or detour around smoke plumes.
Given the hundreds of birds collected on White Sands Missile Range, Cutler guessed the total number of bird deaths statewide was in the tens of thousands to potentially hundreds of thousands.
And while there have been no documented mortality events since 2020, she notes that a lack of deaths doesn’t mean human activities aren’t impacting birds. “Anytime they’re distracted off of their normal migration pathways,” she said, they use up energy and fat critical for migration.
While scientists gathered bird carcasses to examine, they also turned to the public. Researchers from New Mexico State University set up a project on the online nature identification platform iNaturalist to collect citizen observations of dead birds.
Hundreds of people shared photos and descriptions of the birds they found, contributing to a picture of widespread die-offs across New Mexico and other southwestern states.
Ecologist Neeshia Macanowicz was surveying for plants in the Jornada Basin north of Las Cruces when she started encountering dead birds. In 12 years of fieldwork in the area, she said she’d never seen anything like it — not the number of dead birds nor the variety of species.
She posted the photos to iNaturalist, and asked her coworkers to look for birds. She felt sad at the time but said the discovery ended up raising awareness of the status of birds at her worksite.
Scientists from LANL and other federal agencies analyzed 11 years of data from migrating birds captured and banded in and near Los Alamos, in order to understand the relationship between drought and the health of migrating birds.
Jenna Stanek, lead author, found that in years of more severe drought, birds were more likely to be unhealthy with very low fat reserves, while in wetter years, birds were more likely to have fat to support their migration. She also found that young insectivore birds were least likely to have enough fat, suggesting they’re less resilient to drought.
Stanek said birds are more at risk now due to increased climate variability. “Before, if an extreme weather event happened, they had the fat stores to be able to make it through it.”
Cutler said she was surprised to collect so many dead birds at White Sands Missile Range and hypothesizes that artificial lighting may have disoriented and drawn in birds. Songbirds migrate at night, using star patterns, landmarks and the Earth’s magnetic field to guide them. So Cutler started a study to determine how birds are affected by lighting on the missile range.
She said there’s no downside to designing lighting to lessen impacts on birds and other wildlife.
“Birds are just getting hit from such a wide variety of impacts,” she said, “that I think anywhere that we can make improvements is important.”
At home, people can reduce threats to birds by keeping cats inside, turning exterior lights off at night, and making windows bird-safe with cords that hang down and break up reflections, Stanek said. Growing native plants and avoiding pesticides is also critical.
Consumer choices like buying shade-grown coffee and avoiding single-use plastics support healthy bird habitat. And Stanek recommends sharing bird observations on websites like eBird and Project FeederWatch, or joining an in-person bird survey like the Christmas Bird Count.
As fall migration peaks this year in New Mexico, warblers, swallows and flycatchers are again winging South. While the other three North American migration flyways receive greater numbers of birds, many Western bird species migrate via the Central Flyway, which includes New Mexico. Stanek said the Rio Grande corridor in particular is an important refuge for birds as well as butterflies and bats migrating through the arid Southwest. “It’s one of New Mexico’s greatest living treasures.”
Identifying important stopover sites and enhancing and protecting them is one critical way to help birds on the move. If steps are taken to help birds, Stanek said, maybe there won’t be another bird die-off.
Fire-stricken rural New Mexico warily eyes insurance fight – By Susan Montoya Bryan Associated Press
Manuel and Marcy Silva combed through the charred rubble that used to be their home, searching for any salvageable bits in the wake of the largest wildfire in New Mexico history.
Manuel found two of his high school wrestling medals. Gone was the bedroom furniture Marcy’s grandpa built as a gift, her wedding dress and their children’s toys.
The family was only one payment away from owning their single-wide mobile home and like many other northern New Mexico residents whose homes were in the path of the flames, the Silvas were uninsured.
After scorching more than 530 square miles of the Rocky Mountain foothills, the government-sparked wildfire is helping to shine a light on what New Mexico officials are calling a crisis — where insurance coverage for everything from homes to workers compensation comes at premiums that often make it unobtainable for many in the poverty-stricken state.
New Mexico officials are banking on a California insurer relocating to the state and selling policies to low-income and underserved areas. But the multimillion-dollar merger involving California Insurance Co. has been clouded by pay-to-play allegations and remains stalled in court.
On Thursday, a California judge stopped short of granting New Mexico’s request to intervene in the case but cleared the way for the state to weigh in on a proposed plan to resolve ongoing conservatorship proceedings.
Attorneys for New Mexico argued during the hearing that the need for more insurers has only intensified since the proceedings began more than three years ago. They pointed to businesses having a difficult time securing adequate workers compensation coverage.
New Mexico Attorney General Hector Balderas told The Associated Press that he’s concerned about families not being able to insure their homes as the risk of wildfire and post-fire flooding escalate amid climate change.
“I’m very concerned that moving forward these natural disasters are either going to raise premiums or we’re going to be in a deeper crisis like Florida, where insurance providers don’t want to come to New Mexico because it’s a very challenging market to insure,” he said.
Wildfires have burned about 11,000 square miles across the U.S. so far this year, slightly outpacing the 10-year average. The season started early in New Mexico when the U.S. Forest Service failed to take into account the ongoing drought and measures meant to lessen the fire danger were whipped out of control by strong winds.
The federal government agreed to funnel $2.5 billion in recovery funds to New Mexico in what members of the state’s congressional delegation described as a “down payment” on what would be a decades long recovery.
While the relief money has been celebrated by New Mexico officials, residents in remote villages scattered throughout the mountains say they have had a difficult time filing claims with federal emergency managers and that there’s no system for quickly getting families the help they need.
Mike Maes has armored his home with sandbags and a ladder is nearby so he and his family can escape to the roof in case of more post-fire flooding.
“I’m not the type of person to go beg for help or go cry for this, that and the other but I’m tired,” he said, lamenting that he has been forced to take time away from his barbershop business to clean up debris and truck in water for flushing toilets and taking showers now that the well on his property has been ruined.
He tried to get insurance years ago but it would have cost more than what he could have insured his property for.
The Silvas said the cost of insuring a single-wide mobile home manufactured in the 1970s was insurmountable. And the home used a wood-burning stove for heat — like many homes in rural New Mexico.
Marcy Silva works in information technology at New Mexico Highlands, and Manuel is employed by the San Miguel County Public Works Department. They would have opted for insurance if it was affordable.
For now, they and their two young children are living with Manuel’s parents. They hope to buy another mobile home, but acknowledged that the historic pace of inflation isn’t helping and there’s more work to do to restore their property.
“The best way that I can explain it is that it’s been like a never-ending nightmare that just seems to be getting worse and worse,” Manuel said.
California Insurance Co. officials have given assurances to Gov. Michelle Lujan Grisham and state insurance regulators that they would fill the policy gap in New Mexico.
Consumer Watchdog, a Los Angeles-based progressive advocacy group, said New Mexico regulators should be cautious about letting CIC operate in the state. The group sued California regulators in 2020 for emails and other communications after reports surfaced that California Insurance Commissioner Ricardo Lara accepted political donations from insurers, despite promising during his 2018 campaign not to do so.
Lara at the time apologized for accepting political contributions from people associated with Applied Underwriters — CIC’s parent company — and other insurers. He returned more than $80,000 to insurers and other donors with business before state regulators.
Those associated with Applied Underwriters included lobbyist Eric Serna, who retired in 2006 as New Mexico’s insurance superintendent after state officials suspended him over conflict-of-interest issues.
Lara came under scrutiny again this year when Consumer Watchdog voiced new concerns about a series of transactions involving insurance industry donations and independent groups working to support his reelection.
Jerry Flanagan, the consumer group’s litigation director, said the situation facing California and New Mexico homeowners when it comes to wildfire is heartbreaking. Statistics compiled by the insurance industry show about 15% of properties in the two states are at risk of wildfire. Only Montana, Idaho and Colorado have higher percentages.
“Unfortunately, what insurance companies want from political officials is usually bad for consumers,” Flanagan said. “So it’s kind of like an out of the frying pan into the fire situation for New Mexico consumers because you need some coverage but the history with California Insurance Co. is that they can’t be trusted.”
The company disputes the allegations, calling them unfounded and saying that every insurance company in California engages in some form of lobbying.
Jeffrey Silver, the company’s general counsel, wrote in an email that CIC has provided coverage across California and that the number of complaints from policyholders and claimants for years has been in the single digits compared to the tens of thousands of policies issued and millions of people covered.
Silver said it’s time California releases its “stranglehold” and clears the way for the company to do business in New Mexico, where he said it still would be subject to regulatory oversight and periodic reviews.
Balderas, a Democrat who will finish his last term at the end of the year, said what appeals to him is that CIC would be moving its executives and capital to New Mexico once the conservatorship is resolved and would be subject to state regulation and taxation.
“I believe you can hold a company more accountable if they’re headquartered and provide services in the state,” he said.
Attorneys are hoping for a resolution next year, but that leaves people like Maes at a difficult impasse.
Describing life without basic utilities and the potential for devastation that comes with each rain storm, Maes took a long pause, trying not to get choked up. He said he and his neighbors are tucked away and forgotten and that it’s been hard to cope with all the devastation.
“It’s just an ongoing thing over and over again,” he said. “I don’t see light at the end of the tunnel, but there is hope.”
Arizona governor puts more containers along Mexican border – Associated Press
The state of Arizona has begun installing shipping containers along another section of the U.S.-Mexico border to fill gaps that aren’t covered by a border wall.
The move announced by Republican Gov. Doug Ducey on Monday to install stacks of containers in Cochise County in south-eastern Arizona came two weeks after federal officials told him to remove containers he had placed along the border in southwestern Arizona.
Ducey sued in federal court on Friday, asking a court to allow the state to keep more than 100 double-stacked containers topped with razor wire in place near the community of Yuma, which sits near the California border. It also mentions U.S. Forest Service land where the new containers are being placed hundreds of miles to the east.
The containers near Yuma were placed in August to fill gaps in the border wall as Ducey ratcheted up political posturing against what he called the inaction of the Biden Administration in stopping migrants from entering the state from Mexico.
The new section of shipping containers is aimed at a 10-mile section of the border. Ducey said it would take more than 2,700 of the 60-foot-long shipping containers to fill the gap.
The border wall promoted by former President Donald Trump remains a potent issue for Republican politicians hoping to show their support for border security.
Migrants have continued to avoid the recently erected barriers near Yuma by going around them.
Defense motions could sidetrack trial in Taos compound case – Associated Press
A judge has ruled five defendants are competent to stand trial more than four years after they were found in a squalid New Mexico compound with 11 malnourished children and the body of a young boy.
But multiple motions filed by defense lawyers last week may slow the proceedings again.
Taos County sheriff’s officials raided the compound in remote northern New Mexico in August 2018, saying they also discovered a firing range and firearms.
In a second search days later, authorities reported recovering the decomposing remains of a 3-year-old boy from an underground tunnel.
Authorities said the child was the son of one of the five adult suspects and had been reported missing by his mother in Georgia.
All five members of the extended family are charged with conspiracy to commit an offense against the United States and providing material support to terrorists.
Their attorneys said the defendants would not be facing terrorism-related charges if they were not Muslim.
Albuquerque TV station KOB reports that defense lawyers filed motions last week trying to get the judge to drop all kidnapping charges.
The group says they’re immune to kidnapping statutes because the dead boy’s father had legal custody of him at the time.
They also say the autopsy report lists the official cause of death as undetermined.
In addition, defense attorneys are asking the judge to throw out any evidence the sheriff’s office and FBI obtained from the compound during execution of the search warrant.