New Mexico families sue to regain water rights from users association near Cloudcroft

A dispute between downstream water users and the Waterfall Community Water Users Association resulted in a lawsuit that alleged the Waterfall Community Water Users Association committed fraud.

The lawsuit was filed July 12, 2023, in the Twelfth Judicial District Court in Otero County.

The plaintiffs in the matter, listed as Edna Wood 2016 Living Trust and A.D. Swope, are asking the court to make a declaratory judgement on a water rights claim against the Waterfall Community Water Users Association and New Mexico State Engineer Mike Hamman.

The Trust and Swope claim the Waterfall Community Water Users Association committed fraud by submitting illegal water rights change paperwork to the New Mexico Office of the State Engineer for water originating from Culbertson Spring.

Waterfall Community Water Users Association Secretary Chris Burton said the association would not comment on the pending lawsuit.

The lawsuit also alleged the State Engineer erred in accepting the paperwork and had no right to enter into a memorandum of understanding with the Waterfall Community Water Users Association in 2017 for larger water rights.

The Office of the State Engineer declined to comment when asked to by The Alamogordo Daily News.

A history of water rights dispute

The Waterfall Community Water Users Association provides water for the residents within Cox Canyon and the Composite Waterfall Area. Water rights were sold to Waterfall, Inc. in 1971, according to the lawsuit ― rights that the suit said were bought and sold for years before Waterfall's acquisition and which were the subject of numerous water rights lawsuits and decisions.

The filing alleged the users association wrongfully obtained the title to the Wood and Swope's water rights for domestic purposes. The filing alleged the water was used for new housing at the time and diverted from the plaintiffs water source.

The Alamogordo Daily News reached out to the law office of Stelzner Law in Albuquerque on Aug. 31 but did not receive a response. Stelzner Law is representing the Waterfall Community Water Users Association in this case.

"This involved four subdivisions, us (the Wood family), the Swope family, Waterfall Community Users Association that used to be owned by Ysleta College, and Ponderosa Pines," said Cynthia Wood, Edna Wood's daughter.

"The other subdivisions were left unaffected, their water rights were not affected like ours, only the two elderly families, us (the Woods) and the Swope family were affected."

The filing alleged Waterfall hasn't complied with previous water rights agreements that limit the amount of water it can use. The plaintiffs argued the users association, relying on a later declaration of waters rights, uses 53.26 acre feet of water per year instead of its allotted 7.3 acre feet per year.

That water was previously used by downstream users to irrigate crops such as cabbage, lettuce, pumpkins, turnips, spinach and apples and was also used to water pastureland.

In 1988 Waterfall won an appeal which upheld its right to the water and for the water's domestic use, according to the filing. That decision was used to justify a 1999 request by Waterfall to the State Engineer to appropriate all of the waterflow from Culbertson Canyon, 320 acre-feet per year, for domestic use, mainly in the Culbertson subdivision in Cloudcroft, New Mexico.

In 2022, the Wood and Swope families petitioned for the return of the water rights released to the Waterfall Community Water Users Association.

Domestic water use questioned

Cynthia Wood said her family has relied on water from Culbertson Spring and Cox Canyon for two decades in order to keep vegetation and crops from drying up, trusting in the water rights granted to them.

"After the land was purchased by Ysleta (Waterfall Community Water Users Association), it dammed up Culbertson Spring and began to build large ponds on the property," read the filing.

Wood said that impacted not only the downstream water users but allowed for residential development that would have long-lasting impacts on the area's water resources.

The filing contended less water now flows through Cox Canyon as a result of the construction of homes and diversion of water for domestic use.

The filing alleged the water should not have been used for anything other than for irrigation purposes, the filing alleged that in doing so, the downstream water users should not be impacted in any way.

Norman Swope, son of A.D. Swope, said he is frustrated as the case has lingered in the courts. Swope said he would like the matter to be decided swiftly and fairly.

"The water runs down through our property, until it reaches the Woods," Swope said. "So, back in the day both families grew produce and apple orchards. The shared water was to be used for irrigation on agricultural crops and later on, to be used to water pasture for cattle."

Awaiting the court's decision

The Waterfall Community Water Users Association has until Sept. 15 to respond, according to a stipulation filed in court documents to extend time for parties to respond to pleadings.

Juan Corral can be reached at JCorral@gannett.com or on twitter at @Juan36Corr.

This article originally appeared on Alamogordo Daily News: Lawsuit alleges water rights unfairly taken from users near Cloudcroft