Supreme Court ruling complicates Navajo Nation's fight for more water - By Michael Phillis And Sam Metz Associated Press
On some parts of the Navajo Nation, where roughly a third of the people lack reliable access to clean water, people have to drive for miles on red dirt roads to lug water home. Others rely on unregulated wells or water delivery trucks.
Already facing some of the most severe water scarcity in the drought-stricken Southwest, the tribe now has to deal with a Supreme Court ruling this week that will make securing water even harder for the 170,000 enrolled tribal members who live on its reservation.
"I know the battle and the strategy moving ahead is going to be a lot more difficult," Navajo Nation President Buu Nygren told The Associated Press.
The tribe argued that the "permanent home" promised in treaties the U.S. government signed more than 150 years ago includes a right to some of the water crossing the reservation. The question before the court was whether the federal government had to quantify the tribe's water needs and come up with a plan to meet them.
Two decades after the Navajo Nation sued the federal government to force them to act, their frustrating, meandering journey through the federal courts ended with the 5-4 decision authored by Justice Brett Kavanaugh, saying an 1868 treaty "contains no language imposing a duty on the United States to take affirmative steps to secure water for the Tribe."
The decision is a win for states that rely on the Colorado River, which cascades down from the Rocky Mountains through southwestern U.S. deserts. So much water is siphoned off that it rarely reaches Mexico's Gulf of California anymore. The ruling maintains the status quo in already difficult negotiations brokered by the Biden administration over how to share the river's shrinking flows.
Arizona — joined by Nevada and Colorado — argued that requiring them to accommodate the Navajo Nation's water needs would upend future negotiations over water for 40 million people and a $15 billion-a-year agricultural industry that grows most of the nation's winter vegetables.
But it leaves the tribe at a serious disadvantage.
"Where do the Navajo go from here?" Justice Neil Gorsuch wrote in the dissent. They "have waited patiently for someone, anyone, to help them, only to be told (repeatedly) that they have been standing in the wrong line and must try another."
As a result of the ruling, if the Navajo Nation wants access to water from the lower Colorado River, Congress must act or the tribe needs to ask the Supreme Court to reopen a prior case that allocated water between states, said attorney Rita McGuire, who represented southwestern states that opposed the tribe.
"We're very pleased," she said.
Gorsuch found one "silver lining," writing that the majority did agree that the Navajo Nation may be able to assert such a claim. "After today, it is hard to see how this Court (or any court) could ever again fairly deny a request from the Navajo to intervene in litigation over the Colorado River," he wrote.
This case was just one of many legal challenges to agreements over water rights established more than a century ago. The Navajo Nation and other tribes were left out of a landmark 1922 treaty that divided the Colorado River between seven U.S. states, and have long protested that states treat them as an afterthought at a time when all the stakeholders face a future with less water and greater demand.
The National Congress of American Indians President Fawn Sharp said the justices helped the federal government escape its promises to tribes "by stating that treaties only secure access to water, but do not require the United States to take any steps to protect or provide that water to our people."
Kavanaugh said Congress could still help the Navajo Nation. Congress has allocated billions to help tribes secure water rights and build infrastructure to reliably deliver clean water to their people.
But Congress is unlikely to help the tribe, according to Grant Christensen, an Indian law expert at Stetson University.
"There's not enough water now," Christensen said. "Congress isn't going to take further steps to go ahead and secure Indian water rights away from the neighboring states."
And supplying water across the Navajo reservation is particularly challenging because of its arid environment and the great distances involved — it's the largest in the U.S. at 27,000 square-miles (71,000 square-kilometers) — an area larger than West Virginia.
The Navajo Nation has already reached settlements for water from the San Juan River in New Mexico and Utah.
Now it will focus on settling water rights over a Colorado River tributary in Arizona while that case proceeds in court, Nygren said.
It's a familiar position for tribes, said Heather Tanana, a University of Utah law professor and citizen of the Navajo Nation.
"No one's contesting that Navajo Nation has those rights" to water, she said. "But in order to actually make them a reality, they're on their own."
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Associated Press reporter Jessica Gresko in Washington contributed to this report. Phillis reported from St. Louis.
More medical students are seeking abortion training in New Mexico because of Dobbs – By Susan Dunlop, NM Political Report
Medical residents from other states are receiving instruction at the University of New Mexico Center for Reproductive Health in response to the U.S. Supreme Court’s Dobbs decision.
One way that the U.S. Supreme Court’s Dobbs decision, which overturned Roe v. Wade last year, has impacted abortion care across the U.S. is in medical training. Obstetrics and gynecology students studying in states where abortion is banned can no longer receive integrated abortion care training into their years of study. Dr. Jody Steinauer, director of the University of California-San Francisco Bixby Center for Global Reproductive Health, said during a press conference this month that OB-GYN medical students now have to travel to states, such as New Mexico where abortion is legal, to study abortion care.
“Normally, an OB-GYN provider would receive integrated abortion care training over the years of the student’s studies. Now, medical students in states where abortion is banned are only receiving about four weeks of training,” Steinauer said.
Dr. Amber Truehart, medical director of the UNM Center for Reproductive Health, said the center is “getting a variety of people looking for abortion training.”
Truehart said medical residents studying at medical schools in states where abortion is banned are now coming to the UNM Center for Reproductive Health for a one-month rotation to receive the training. Truehart said this is happening nationally in other states where abortion remains legal.
She said, in addition, students who are not just OB-GYN residents are applying to the UNM Center for Reproductive Health for abortion training. Those students include psychiatric residents and nurse midwives.
“They’re reaching out, trying to figure out medication abortion or surgical abortion; how they can help,” Truehart said.
Truehart said psychiatric providers already provide counseling and prescribe medications to help their patients. Medication abortion is a two-step regime regulated by the U.S. Food and Drug Administration. The FDA loosened some of its restrictions around prescribing the first of the two drugs, mifepristone, earlier this year. Currently, mifepristone can be prescribed and dispensed by a health care medical provider who meets certain qualifications and is certified by the FDA’s mifepristone regulations program.
Rebecca Griffin, a spokesperson for the Bixby Center, said that after just one year since the Dobbs decision, we’re “only beginning to see the impacts on abortion training and what that means for the workforce and abortion care.”
Researchers at the Person-Centered Reproductive Health Program at the University of California-San Francisco recently published a paper in The American Board of Family Medicine about the potential of integrating abortion care into family practice medicine.
The researchers found, when they interviewed a small cohort of family physicians in 2019, that many felt that abortion fits within the scope of their care. But the practice has become a specialized form of care almost exclusively managed at clinics, so family physicians don’t practice it.
The researchers also found that family physicians are, at times, frustrated that they can’t offer abortion care since they usually develop relationships with their patients. The researchers also noted that if family physicians did offer such care, it could help to alleviate the abortion desert issue that impacts rural parts of the U.S., including New Mexico.
Truehart said that instead of the Dobbs decision instilling fear for providers, the opposite effect has happened.
“These kinds of laws have made people vocal and empowered, especially in New Mexico. The laws protect us here. Here people feel empowered to see what kind of role they can play,” Truehart said.
Truehart said abortion access has been under attack for a long time and that abortion was difficult for many individuals to access before the Dobbs decision sent the question of legality back to states to decide.
“People have potentially been thinking about it (for) a while. Dobbs pushed them to be more vocal and forward facing,” Truehart said.
A DOUBLE STANDARD OF CARE?
For medical professionals in states, such as Texas, where abortion is banned, the Dobbs decision has led to moral distress for many in the profession.
Dr. Tony Ogburn, a general OB-GYN physician now located in south Texas, said the Dobbs decision has changed many things about the practice of care. Before relocating to south Texas, Ogburn worked for Indian Health Services in Gallup, then moved to UNM where he spent 18 years.
Ogburn said the Dobbs decision has increased challenges to accomplish higher levels of abortion care because it is simply not available because of the law in some states and, sometimes, patients can’t travel to states such as New Mexico where abortion is still legal.
Ogburn said the situation causes moral distress for both practitioners, as well as for students studying in anti-abortion states.
Ogburn said the distress doesn’t just impact the OB-GYN provider but all the medical staff who interact with a patient. He said that in the facility where he works, nurses and anesthesiologists become frightened to be involved in providing care for a patient who might be suffering an ectopic pregnancy, which is a nonviable pregnancy outside the uterus that could cause life-threatening bleeding in the pregnant person.
“There’s a significant amount of angst often. It starts to wear on a lot of people,” Ogburn said.
Flor Hunt, executive director of Training in Early Abortion for Comprehensive Healthcare (TEACH), said that abortion is so safe, many medical students may not witness complications if their training is not integrated into years of medical study.
“Learning to empty a uterus is not brain surgery. It is so safe, you need a lot of experience under your belt [to see complications occur],” Hunt said.
Steinauer said there are about 30,000 medical students who are being educated to become doctors in the most restricted states.
“I’m worried these doctors will finish their training without basic knowledge of abortion care,” Steinauer said.
Truehart said the fact that there could be varying levels of abortion care training for OB-GYN medical students as a result of states banning abortion since Dobbs is very concerning.
“It makes me very concerned for women,” Truehart said.
She said this could affect pregnant people, even if they live in states, such as New Mexico, where the next generation of OB-GYN medical students are receiving integrated abortion care into their years of training.
“If you’re in the Dallas airport and you have pregnancy complications, you could get a doctor who’s only got one month of training taking care of abortion complications,” she said.
Hunt said that in abortion safe-haven states abortion clinics are overwhelmed with the volume of patients and they “don’t have the capacity to take on learners under their belt.”
Truehart said that in Albuquerque, more clinics have opened since Dobbs and more private clinics are considering becoming available to medical students who need the one-month training.
OTHER CHANGES SINCE DOBBS
Truehart said another result of Dobbs is that the UNM Center for Reproductive Health is now seeing a disproportionate number of very complex patients. The patients are often now at a higher gestational age in pregnancy and requiring more complex care, she said.
Truehart said that when the Texas six-week ban went into effect in 2021, there was a “big wave of patients,” but since Dobbs, it’s “not just the volume is higher, but they are also more complicated patients.”
She said the center also has to do more work to make sure the patients are safe and obtain their medical records from out of state. Truehart said another difference since Dobbs is that the UNM Center for Reproductive Health has become part of a system of university hospitals around the country that offer abortions on a sliding scale because the pregnant person coming from out-of-state may lack insurance. She said the abortion care takes place in the hospital and the sliding scale fee is also available for in-state patients as well.
Northern NM prescribed burn postponed — By Nash Jones, KUNM News
Fire officials have called off a prescribed fire on the New Mexico/Colorado border planned for this weekend. The postponement is due to heavy winds that are no longer expected to lighten up in time for the fire to do the work intended, according to an announcement from the Carson National Forest.
While a state law passed this year prohibits prescribed burns during Red Flag warnings — which the National Weather Service issues on days of heavy wind, high heat, dry air and unstable atmosphere — a spokesperson for the U.S. Forest Service told KUNM earlier this month that the state law does not apply to the federal agency.
Still, forest officials say the wind will be stronger than the parameters outlined in their fire plan.
Conejos Peak District Ranger Andrea Jones of the Rio Grande National Forest in Colorado says fire managers are evaluating the status of weather and fuels on an ongoing basis.
She says similar burn windows have proved successful in the past, but her team was sure they wouldn’t move forward if the wind speeds stayed high, which they're now expected to.
Managers say they’re doubtful another opportunity for the burn will arise until after the monsoon ends.
'Rust' weapons supervisor charged with dumping drugs on day of Alec Baldwin shooting - By Andrew Dalton Ap Entertainment Writer
The weapons supervisor charged with involuntary manslaughter in the shooting death of a cinematographer on the New Mexico set of the Alec Baldwin film "Rust" was charged Thursday with evidence tampering for allegedly passing drugs to someone else on the day of the shooting.
Hannah Gutierrez-Reed "did transfer narcotics to another person with the intent to prevent the apprehension, prosecution or conviction of herself." the special prosecutors appointed in the case said in a Santa Fe County court filing. They gave no further details.
Gutierrez-Reed's attorney Jason Bowles called the move "retaliatory and vindictive."
"It is shocking that after 20 months of investigation, the special prosecutor now throws in a completely new charge against Ms. Gutierrez Reed, with no prior notice or any witness statements, lab reports, or evidence to support it," Bowles said in a statement.
Gutierrez-Reed is the sole remaining defendant in the case after prosecutors in April dropped an involuntary manslaughter charge against Baldwin, who was pointing a gun at cinematographer Halyna Hutchins during a rehearsal when it went off, killed her and injured director Joel Souza on Oct. 21, 2021. Prosecutors can still refile charges against Baldwin.
The new charge comes a week after prosecutors alleged in a court filing that Gutierrez-Reed was drinking and smoking marijuana in the evenings during the filming of "Rust" and was likely hungover on the day a live bullet was placed into the gun Baldwin used.
Bowles called that allegation "character assassination" from prosecutors with a weak case that the defense has asked a judge to dismiss.
In his own filing Thursday, Bowles revealed that he had been accidentally included on an email to District Attorney Mary Carmack-Altwies from her lead investigator in the case, who slammed the law enforcement response to the shooting.
"The conduct of the Santa Fe County Sheriff's Office during and after their initial investigation is reprehensible and unprofessional to a degree I still have no words for," Robert Schilling wrote in the email, in which he said he will be stepping down so special prosecutors can use their own investigator. "Not I or 200 more proficient investigators than I can/could clean up the mess delivered to your office."
Bowles said in his filing that the email demonstrates the weakness of the case against his client. He said it suggests that the prosecution has been withholding evidence from the defense.
Emails seeking comment from the Sheriff's Office and the special prosecutors were not immediately returned.
Albuquerque approves zoning changes allowing more casita - Megan Myscofski, KUNM News
The Albuquerque City Council voted 5-4 on Wednesday in favor of zoning code changes aimed at increasing density and housing supply in the city.
The bill makes it possible to build a casita, or accessory dwelling unit, in areas of the city that have long had single-family zoning. It also changes building height limitations.
Several changes were made to the bill before it was passed, including a provision to also allow duplexes to be built in single-family zones and put reductions in place on required off-street parking.
The bill is part of Mayor Tim Keller’s Housing First plan to address the growing housing crisis. A report this year from the Legislative Finance Committee found that since 2017 rental rates in New Mexico have increased by 70% while wages have only grown by 15%.
How the Dobbs decision helped lead New Mexico to become a safety state for LGBTQ individuals - Susan Dunlap, NM Political Report
The U.S. Supreme Court’s Dobbs decision unleashed “some real darkness” for the LGBTQ community nationally, but New Mexico responded with a landmark legislative year for LGBTQ rights.
The Human Rights Campaign declared a national state of emergency earlier this month for LGBTQ Americans because more than 75 anti-LGBTQ bills have been signed into law in 2023 in states across the country. The Human Rights Campaign, a national LGBTQ organization, calls the number of anti-LGBTQ bills “unprecedented.”
Marshall Martinez, executive director for Equality New Mexico, said this is “arguably the most politically dangerous time in American history for queer and trans folks.”
“We can’t deny that when this Supreme Court was seated, when they issued the Dobbs decision, they signaled very clearly to the state and local governments across the country, you can do what you want to attack bodily autonomy and we’re not going to stop you,” Martinez told NM Political Report.
In the Dobbs decision, Supreme Court Justice Clarence Thomas wrote a concurring opinion that the court needed to revisit other cases that rest on the 14th amendment, including Obergefell v. Hodges, which codified same-sex marriage, and Lawrence v. Texas, which codified same-sex relationships.
Adrien Lawyer, director of education and co-founder of Transgender Resource Center of New Mexico, said he doesn’t see how reproductive rights and LGBTQ rights are separate politically. Lawyer said the Dobbs decision made cisgender women and LGBTQ individuals second class citizens.
“People think of reproductive healthcare as a woman’s issue. We see it differently. It includes people who can get pregnant. You can have a uterus if you’re gender nonbinary or a transgender man. It’s about all those who face stigma, including trans and nonbinary folks. It’s a move to relegate people so they are not able to make their own choices,” Lawyer said.
Lawyer said the Dobbs decision is a “symptom of the darkness already unleashed.”
“It’s one of the milestones in this vitriolic political climate since 2016…the politics of 2016 unleashed all of this and now we’ve seen it come to its natural conclusions,” Lawyer said.
NEW MEXICO
The 2023 legislature passed a record number of bills this year that protect the LGBTQ community in New Mexico. Martinez said the fact that two reproductive healthcare bills included gender-affirming care is not exactly a result of the Dobbs decision but that it played a role. He said it’s a little more nuanced.
“We can’t deny this political moment for those bills to be successful. But we can’t deny success because of decades of work,” Martinez said.
The two bills, one that shields providers from out-of-state forces trying to criminalize or penalize abortion or gender-affirming care, and one that prohibits discrimination against that care, passed the legislature in March and were signed by Governor Michelle Lujan Grisham. SB 13, Reproductive Health Provider Protections Act, and HB 7, Reproductive and Gender-Affirming Healthcare Act, respectively, went into effect last week.
State Sen. Linda Lopez, D-Albuquerque, who sponsored the shield law, said that the two bills work “in tandem to make sure we provide the best protection in New Mexico.”
State Rep. Linda Serrato, D-Santa Fe, said she is “really proud of the gender-affirming care aspect” of the anti-discrimination bill.
Serrato said that while talking to members of the community after Dobbs, she heard individuals anticipating the court’s ruling would leave gender-affirming care open to attack.
“We should be in front of that,” Serrato said.
Lawyer said TGRC and similar organizations in New Mexico are receiving calls from out-of-state individuals who are trying to navigate the legal implications of traveling to the state for gender-affirming care when they live in states that criminalize it. He said the phone calls are so overwhelming TGRC and some sister organizations are seeking funding to hire a part-time staff person to field the phone calls.
“We’re also getting calls from doctors in New Mexico,” Lawyer said. “New Mexico doctors call us to say ‘we’re getting out-of-state calls’ and they call us about liability.”
Despite the protections the new laws provide for gender-affirming care, there is a shortage of gender-affirming care providers in New Mexico. Lawyer said that is especially true for children who need gender-affirming care. Martinez said the gender-affirming healthcare shortage is no different from all other medical provider shortages in the state.
But, he hopes that the attention New Mexico receives for passing two gender-affirming healthcare bills will encourage healthcare providers to move from states where abortion and gender-affirming care are criminalized to come to New Mexico where that care is protected.
Ellie Rushforth, a reproductive rights attorney with American Civil Liberties Union of New Mexico, said that with the passage of the LGBTQ legislation in the legislature earlier this year, the state has built on a strong foundation to protect the LGBTQ community.
“I’m very proud of that but it takes more; it takes showing up in community conversations when someone is saying something harmful. It takes showing up at city council meetings when folks are stigmatized,” Rushforth said.
Another important piece of legislation that Martinez said makes New Mexico the most protective LGBTQ state in the nation is HB 207, which expands the scope of the state’s Human Rights Act to prohibit public bodies and contractors who work for public bodies from discriminating against LGBTQ individuals. It also includes very expansive definitions of gender, gender identity and sexual orientation.
Martinez credits the definitions as coming from “a table of queer and trans people who know how they feel and how people treat them,” instead of lawyers.
“We believe our shield law, SB 13, is the strongest shield law in the country and it’s the only one that also includes gender-affirming healthcare. We can say we’re the most legally protected state. We have broad definitions that encompass the entire queer and trans community and it’s from our experience, not what someone thinks is legally sound,” Martinez said.
HB 207, sponsored by state Rep. Kristina Ortez, D-Taos, also became law on Friday.
Another bill, HB 31, which removed the requirement of announcing a legal name change in a local newspaper through a legal advertisement, also became law on Friday. State Rep. Christine Chandler, D-Los Alamos, sponsored that law.
Lawyer said this combination of bills protecting LGBTQ individuals are “huge for folks.” He noted that during the last 60-day legislative session, in 2021, the LGBTQ community rallied to kill an anti-trans sports bill that failed to pass its first committee hearing. But, during the next 60-day session, in 2023, the LGBTQ community worked to codify protections. He attributes the change to the Dobbs decision.
“Let’s not just wait to see what bad shit they throw at us and defeat it, let’s make New Mexico a safety state,” Lawyer said of the response.
Lawyer said the current climate reminds him, somewhat, of the 1980s when AIDS created a galvanizing moment for the LGBTQ community. He said the vitriol around LGBTQ individuals, particularly trans and gender nonbinary individuals, is part of a historical cycle.
“People had to come out [in the 1980s because of the AIDS crisis]. Personalizations are one of the main things that shifts culture. People have to know someone. Visibility isn’t the win, it’s the tool. People have to come out of the closet. Public education, all that stuff matters, but the fundamental factor that changed things, you can’t keep going with persecution when people are real people to you,” Lawyer said.
New Mexico Supreme Court affirms 4 murder convictions of man in 2017 fatal shootings - Associated Press
The New Mexico Supreme Court on Thursday affirmed the murder convictions of a man who is serving four consecutive life prison terms for the 2017 shooting deaths of three family members and a stranger in Rio Arriba County.
Damian Herrera was accused of murdering his mother, brother and stepfather following an argument at the family's home in La Madera, north of Española.
Authorities said Herrera then fled to Abiquiu, where he shot and killed a fourth victim at a gas station.
Herrera was 26 when he was sentenced in January 2022.
The state Supreme Court on Thursday also remanded the case to the First Judicial District Court to vacate either Herrera's conviction for resisting, evading or obstructing an officer or his conviction for assault on a police officer.
The court said the two misdemeanor convictions violated constitutional double jeopardy protections against multiple punishments for the same offense.
Herrera was sentenced to 364 days incarceration for each of those convictions.
The state's high court left in place Herrera's other convictions for aggravated fleeing a law enforcement officer, possession of a stolen motor vehicle, attempted disarming of a peace officer, larceny of a firearm, and credit card theft.
He was sentenced to 18 months in prison for each of the convictions, with the sentences to run consecutively.