Bounds v. State

149 N.M. 484

252 P.3d 708

2011 -NMCA- 011

Horace BOUNDS, Jr., Plaintiff–Appellee,andJo Bounds and the San Lorenzo Community Ditch Association, Plaintiffs,andNew Mexico Farm & Livestock Bureau, Intervenor–Appellee,

v.STATE of New Mexico and John R. D'Antonio, Jr., New Mexico State Engineer, Defendants–Appellants.

No. 28,860.

Court of Appeals of New Mexico.

Oct. 29, 2010.Certiorari Granted, Nos. 32,713 and 32,717, Jan. 27, 2011.

Hubert & Hernandez, LLC, Beverly J. Singleman, Stephen A. Hubert, Las Cruces, NM, for Appellee Bounds.Hennighausen & Olsen, L.L.P., A.J. Olsen, Alvin F. Jones, Roswell, NM, for Intervenor.Gary K. King, Attorney General, DL Sanders, Chief Counsel, Special Assistant Attorney General, Santa Fe, NM, Brett J. Olsen, P.C., Brett J. Olsen, Special Assistant Attorney General, Albuquerque, NM, Law Offices of Randall W. Childress, P.C., Stacey J. Goodwin, Special Assistant Attorney General, Santa Fe, NM, for Appellants.Law & Resource Planning Associates, A Professional Corporation, Charles T. DuMars, Stephen Curtice, Patrick J. Redmond, Albuquerque, NM, for Amici Curiae 4 Daughters Land & Cattle Company, Great Western Ranch, LLC, Sanders Land & Cattle, Inc., Western New Mexico Water Preservation Association, and Verde Realty.Taylor & McCaleb, P.A., Jolene L. McCaleb, Elizabeth Newlin Taylor, Corrales, NM, for Amicus Curiae New Mexico Ground Water Association.Basham & Basham, P.C., Mark A. Basham, Santa Fe, NM, for Amicus Curiae New Mexico Association of Counties.Frank Katz, City Attorney, Marcos Martinez, Assistant City Attorney, Santa Fe, NM, for Amicus Curiae City of Santa Fe.Jane Marx, Attorney at Law, P.C., Jane Marx, Albuquerque, NM, Janov Law Offices, P.C., Gwenellen P. Janov, Albuquerque, NM, for Amici Curiae The Pueblo of San Felipe and The Zuni Tribe.Navajo Nation Department of Justice, Stanley M. Pollack, Bidtah N. Becker, Water Rights Unit, Window Rock, AZ, for Amicus Curiae The Navajo Nation.Luebben Johnson & Barnhouse LLP, Samuel D. Hough, Albuquerque, NM, for Amicus Curiae The Pueblo of Santa Ana.Sonosky, Chambers, Sachse, Mielke & Brownell, LLP, David C. Mielke, Albuquerque, NM, for Amicus Curiae The Pueblo of Isleta.

OPINION

SUTIN, Judge.

{1} We address the question whether New Mexico's domestic well statute (the DWS), NMSA 1978, § 72–12–1.1 (2003), is facially unconstitutional. The DWS states that the New Mexico State Engineer shall issue domestic well permits to draw groundwater for domestic use “[u]pon the filing of each application.” The DWS is controversial because it requires the permit to be issued upon application without notice, and any prior evaluation by the State Engineer of the effect, if any, of the anticipated domestic water use on senior water rights in a fully appropriated basin.

{2} Plaintiffs Horace Bounds, Jr. (Bounds), a senior water rights holder, and his wife, Jo Bounds, who was dismissed from the action as a party, sued Defendants State of New Mexico and John R. D'Antonio, Jr., New Mexico State Engineer (the State Engineer) (collectively, Defendants) for declaratory and injunctive relief. The New Mexico Farm and Livestock Bureau intervened as a party plaintiff. Bounds sought to declare the DWS facially unconstitutional and to prevent the State Engineer from issuing domestic well permits without first determining that unappropriated water was available, the permit would not impair senior water rights, and issuance of the permit was in the public interest.

{3} Bounds claimed that the automatic issuance of domestic well permits under the DWS in a fully appropriated basin would necessarily impair his senior water right and place the domestic well permittees in a position of priority in violation of the doctrine of prior appropriation set out in Article XVI, Section 2 of the New Mexico Constitution (the priority doctrine). The district court agreed and declared that on its face the DWS was unconstitutional because it was an impermissible exception to the priority doctrine. The court required the State Engineer to administer domestic well applications no differently than all other applications to appropriate groundwater.

{4} We hold that the DWS does not on its face violate the priority doctrine or constitute an impermissible exception to that doctrine. The priority doctrine is but a broad principle. The Legislature is authorized to enact laws providing for administration of appropriation of water. The DWS creates the procedure for issuing permits for appropriation of groundwater for domestic use. The State Engineer is authorized in legislation to administer the appropriation of water and to adopt regulations relating to that process.

{5} The Legislature is authorized to enact laws providing for administrative enforcement of priority of use in times when water use by junior rights must be curtailed in order to protect against impairment of senior rights. Under statutory authority, the State Engineer has the continuing and steadfast duty to administer water use in a manner that protects senior water rights from impairment. Barring contravention of the priority doctrine, the Legislature can enact exceptions to already existing statutes relating to priority administration. It stands to reason that the Legislature relies on the State Engineer's sound and careful discretion in exercising curtailment authority when curtailment is necessary because of impairment of senior water rights due to existing or impending water shortages.

BACKGROUNDA. Background of Action

{6} Bounds owns irrigation rights with an 1869 priority as to waters in the “Upper Mimbres.” In his complaint, Bounds challenged the constitutionality of the DWS on the ground that it permits continued withdrawals of groundwater and takings of surface water to the detriment of his vested property rights. He complained that the DWS requires the State Engineer without the exercise of discretion to issue permits for domestic wells solely upon application for the permit despite impairment of his and others' senior water rights.

{7} Bounds complained about the issuance of prior and future domestic well permits despite existing drought conditions and previous serious water shortages, about the inability of the State Engineer to deny domestic well permits, and about unregulated withdrawals from permitted domestic wells. He sought to enjoin the State Engineer from issuing domestic well permits in the Rio Mimbres Stream System and/or the Mimbres Underground Water Basin because all water rights had been fully adjudicated and that there are no unappropriated waters remaining. Bounds also asserted that the DWS violates due process and constitutes an unconstitutional taking of his vested property right in violation of 42 U.S.C. § 1983, claims that the district court dismissed without prejudice.

{8} Defendants moved to dismiss based on ripeness along with other motions not pertinent to this appeal. Following an evidentiary hearing on ripeness and other issues, the court entered an order denying Defendants' motion to dismiss. The court denied Defendants' motion for reconsideration in which they attacked several of the court's findings and conclusions as lacking support in the record or as not necessary for any ultimate determination. Defendants filed a motion for summary judgment asking the court to determine that the DWS was constitutional and that there were no regulatory takings of Bounds' property. The parties then agreed that the district court should vacate the trial setting and, based on the record then before the court, the court would proceed to decide, purely as a legal issue, the single and dispositive issue of the constitutionality of the DWS.

{9} The district court filed a decision with findings of fact and conclusions of law. In regard to available water in the Mimbres Basin, the court found:

4. The entire Mimbres Basin has been closed since 1972. In a closed basin there is no water available for appropriation.

5. The entire basin has been adjudicated, including all ground water and surface water.

....

23. It is not logical, let alone consistent with constitutional protections, to require the [State Engineer] to issue domestic well permits without any consideration of the availability of unappropriated water or the priority of appropriated water.

As to the issue of any actual impairment of Bounds' water rights, the court determined that “Bounds does not have to suffer actual impairment to attack the constitutionality of the statute” and that it would “do little good for Bounds, and others ... to sit idly and wait for actual impairment.” The court stated that “[i]t is not what has been done, but what can be done under a statute that determines its constitutionality.”

{10} In regard to the State Engineer, the court found that the State Engineer “has long considered [the DWS] to be mandatory and, since 1953, has issued domestic well permits without regard to availability of unappropriated water or priority of appropriated water.” The court also found that the State Engineer “has recognized its lack of power to protect senior water rights and has attempted, without success, to get the Legislature to amend [the DWS].” In addition, the court found that in the present case the State Engineer had decided that the DWS was constitutional and had indicated that “it may have regulatory authority to control domestic wells[,]” something the court found to be “questionable.”

{11} Continuing its findings, the court stated that the State Engineer “testified he would not subject domestic wells to a priority call notwithstanding this [was] a derogation of his [constitutional] duty.” The court further stated that the State Engineer had “no statutory or regulatory process in place to give senior appropriators procedural or substantive due process” and that “[s]enior appropriators do not even get notice of application, let alone a hearing.” The court found that the DWS “lack[ed] any due process provisions to...