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LANDMARK PLEADINGS AND OTHER DOCUMENTS IN NEW MEXICO WATER LAW CASES

Since the passing of Steve Reynolds, the New Mexico State Engineer Office has been effectively under the control of its Chief Legal Counsel, D.L. Sanders.  Mr. Sanders and the State Engineer have turned their back on the Doctrine of Prior Appropriations and have been trying to take complete control of New Mexico water and to wrest it from private citizens.  They have repeatedly turned their back on the State Constitution, State Law, their own regulations, decisional law, and an extensive body of former administrative decisions.  They have gone to far.  They have misled and misinformed the courts.  They commonly argue two sides of a question in different cases before the courts.  They engage litigation to protect public monopolies.  They change their own regulations ex post facto when the existing regulations do not suit them.  And, they continue to defalcate in their duty to adjudicate water rights in the entire state, a failing of more than 102 years.  They maintain legal fictions.    They engage in malicious and onerous skulduggery to defeat water rights belonging to private owners.  This is only a partial list of their bad faith behavior over the past 10 or 15 years.  Others may add to this list. 

Given their malicious behavior, certain litigants and major issues have arisen in the past five years such that our attorneys and judges are in the process of taking back our water law and setting the State Engineer back on course.  This is fortunate because Courts commonly have had so few water law cases that judges do not last long enough to learn the New Mexico water law, its history, and its twists and turns.  This results in bad decisions throughout our court system.  This is changing drastically and here are a few of the cases that are causing this change.  For pleadings and other materials on these cases, click on each case.

Turner v. Basstt, 2005 NMSC 9; 111 P.3d 701 (March 2005) A quiet title action to water rights which established the ownership of water rights are not subject to adverse possession.  The case also established that the State Engineer is the title plant for all water rights ownership matters and not the County Recorder.  The case also gutted the Statute of Frauds when it decided that it is not the written agreement of the parties to a contract as to whether water rights are severed from the land or not.  It is only the agreement of the State Engineer to sever the water rights whether or not there is any severance by deed.  Judge Chavez was particularly interested in oral argument as to how to prevent the Plaintiff from obtaining a windfall.

Bounds v. State Engineer, D-608-CV-2006-166  This case was filed by Hubert and Hernandez on behalf of the Bounds family who reside in the Mimbres Valley of southern New Mexico.  The Bounds are surface water diverters and users.  They have protested the domestic well permits that are issued by the State Engineer automatically.  The domestic wells are junior to the senior water rights owned by the Bounds Family and others in the Valley.  Judge Robinson has sided with the Plaintiffs and declared the statute that authorizes the issuance of these permits as unconstitutional and comes down in support of the Doctrine of Prior Appropriations.  The State Engineer has lobbied the Legislature for at least 15 years to del with domestic wells.  They have not.  To force the legislature to act, the State Engineer should not have appealed the decision; but, appeal it he did.

Tri-State v. State Engineer, D-725-CV-2005-00003 - This case concerns the Active Water Management Regulations promulgated in a rather rough-handed manner by the State Engineer in which Water Masters appointed by the State Engineer for the various streams in the state would have the power to carry out de facto adjudication and deny water to irrigators on an administrative basis.  Any disagreement would lead to a hearing before the State Engineer and if the Appellant didn't like the outcome he could appeal to District Court for a trial de novo.  Judge Rawlings determined that the regulations were unconstitutional.  He determined that the regulations would lead to administrative adjudication and that only the courts had the authority to adjudicate water rights.  The matter is on appeal.  A number of amicii briefs have been filed with the appeals court.  All of them oppose the AWRM regulations and defend the Doctrine of Prior Appropriations.

State Engineer v. EBID et al., D-303-CV-1996-00888  Lower Rio Grande Adjudication in which the State Engineer has refused to recognize any pre-1907 private water rights and has failed to use its own records including old maps to recognize that more than 30,000 acres of land were irrigated in the Lower Rio Grande prior to 1900 and certainly pre-dated the Application by the U.S. Irrigation Service on January 23, 1906 for the Rio Grande Project known as the so-called Application Number 8.  Application Number 8 was not filed by the United States and bears no signature of any U.S. employee.  Further, it was so totally incomplete that it must be rejected.  Most importantly, so-called Application No. 8 was never approved by the Territorial or State Engineer and no permit was every issued.  Intercession in this case by Lion's Gate Water and Westwater Resources dba WaterBank through direct mailings and pleadings have revealed the massive amount of information on pre-1900 irrigation.  Likely in response to these revelations, Judge Valentine wrote to all plaintiffs in the adjudication to inform them that if they believe they have pre-1907 water rights, they should file a declaration with the Las Cruces office of the State Engineer.  In fact, neither the Elephant Butte Irrigation District (EBID)  nor their attorneys were aware of the 1903 French Map discovered by WaterBank and are now scurrying to find some documentary proof that farmers in the area did turn over their water rights to the EBID.  WaterBank has never found such evidence. WaterBank has provided an Amicus Curiae brief to the court that disputes any interest of the United States or the EBID or any of their members.  A Declaration for pre-1907 water rights has been prepared by WaterBank for an EBID irrigator.  To view the Declaration click here.

Lion's Gate Water v. State Engineer, D-1329-CV-2007-00596  The Application of Lion's Gate for a new appropriation of up to salvage 372,000 acre feet of water from the Rio Grande which is lost by evaporation.  This application was filed in 2003 and for five years, the State Engineer has run LGW around and around.  After rejecting the application at the hearing level (which was a foregone conclusion) LGW filed an Appeal and Complaint as an originally docketed action in District Court in Sandoval County.  After 300 days, the State Engineer had not filed its Answer or any 12(B) Motions, LGW filed for Judgment on the Pleadings for failure to file an answer.  Judge Eichwald denied the Motion but granted interlocutory appeal on the question.  The appeal was denied by the appeals court and the supreme court.  LGW is now preparing a petition for Writ of Certiorari to the U.S. Supreme Court for deprivation of due process.  In the meanwhile immediately following LGW's Motion for Judgment on the Pleadings and more than 300 days since LGW filed its Appeal and Complaint as an originally docketed action, the State Engineer filed its Motion for Summary Judgment.  LGW has responded to the Motion for Summary Judgment and is in the process of filing its own Motion for Summary Judgment  The State Engineer originally rejected the Application stating that the Rio Grande is already overappropriated.  He has been saying that for years and using for his basis, a letter dated on or about April 25, 1908  from the Reclamation Service to Vernon Sullivan, the Territorial Engineer, that appropriated all of the unappropriated water of the Rio Grande.  There are several reasons why this attempted reservation is illegal and of no substance.  First, the National Irrigation Act of June 17, 1902 established the Reclamation Service.  Section 8 of the Act requires the Reclamation Service to follow Territorial and State Law in obtaining water rights for its projects.  The Reclamation Service never tried to do this. They never filed an Application as required by the New Mexico Territorial Water Code of 1905.  So-called Application No. 8 was not filed by the Reclamation Service and was not signed by  anyone let alone an official representative of the United States.  Further, it was was never approved according to State Engineer records, the Yeo Survey and a March 23, 1927 letter from Herbert W. Yeo to the Bureau of Reclamation.  Second,  water for federal reclamation and conservancy projects can not be reserved as stated in Kansas v. Colorado (1907) and Winters(1908).  Further the State Engineer simply said that the evaporative water loss is already accounted for in the Rio Grande Compact, a thinly veiled justification without explication.  When one examines Rio Grande Accounting one finds that credit water is determined by subtracting lake evaporation from reservoir inflow.  The evaporation is, in fact, wet water, and it is unappropriated for beneficial use.  It is one of the quantities of wet water in the water budget equation and it is the water that LGW seeks to salvage and appropriate for beneficial use.  Further, the water does not have to be in the lake to quantify the evaporation.  In fact, Arthur Powell Davis, Chief Engineer for the Bureau of Reclamation in 1917 calculated the evaporation loss for Elephant Butte Reservoir from 1894 through 1915 as though the reservoir were in existence during that period.  Elephant Butte Dam was completed in 1916.  Therefore, one can do the Rio Grande Compact accounting and salvage the unappropriated wet water that would have been evaporated without allowing it to evaporate.

Lion's Gate Water v. State Engineer, D-608-CV-2007-00328  The Application of Lion's Gate Water for up to 48,000 acre feet of water from the Gila River below Redrock actually sought 18,000 acre feet reserved to New Mexico under the Colorado River Compact.  The Arizona Water Settlement Act signed by George Bush in December 2005, reduced that amount to 14,000 acre feet per annum.  LGW published its notice of their application as required.  The State Engineer rejected the Application on the grounds that in his opinion there was no unappropriated water which is absurd if the Congress reserved 14,000 acre feet.  Since passage of the AWSA, major efforts are in progress to develop a river model that incorporates all of the side-agreements to the AWSA so that one can easily determine when and how much water can be diverted.  In a recent court hearing in front of Judge Robinson, State Engineer Attorney Jonathan Sperber was asked by the judge if the water existed.  Sperber's answer was an incoherent sputtering and agreement.  Early on in this case, the State Engineer issued a Limiting Order which bifurcated the case such that the first time around LGW would have to prove that the water exists and then it would have to publish notice all over again.  The State Engineer held that the LGW notice that was published had not been ordered by him and was, therefore, illegal.  At a recent hearing, Judge Robinson found that not only was the notice legally published but it was legally sufficient and there were no protests.  The State Engineer had earlier dealt with this matter by creating a new regulation, in violation of the process for creating a regulations.  The State Engineer's attempt to meddle with the regulations will be found illegal not only because of violations of the rule-making process but because a rule cannot constrain or enlarge the intent of the law that it parallels.  Judge Robinson certified for interlocutory appeal whether or not The State Engineer can bifurcate the issues in the case because to do so could frustrate any applicant and impose an undue burden on both the applicant and the judicial system.

The Petition of Lion's Gate Water to Intervene in the Lower Rio Grande Adjudication Filed by LGW because it owns water rights in Valencia County with a pre-1800 priority date.  Though EBID v. NMSU 115 N.M. 229, 849 P2d 372 (1993) supports the view that the Rio Grande can be adjudicated by reach, LGW disagrees and has pointed out that the decision is only an appeals court decision.  LGW has also pointed out that the oldest irrigation in the Lower Rio Grande in New Mexico is from the Dona Ana Ditch constructed in 1844.  It is the Rio Grande Compact of 1939 that divided the Rio Grande into reaches.  However, it is LGW position that the Rio Grande Compact did not abnegate the Doctrine of Prior Appropriations and senior water rights in the Middle Rio Grande can still issue a call on junior water rights in the Lower Rio Grande.  Judge Valentine certified this question for appeal where it has now resided for six months with no action by the appeals court.

Montgomery v. N.M. State Engineer, 2007-NMSC-002, 150 P.3d 971.  Is the transfer of a water right to a new ground-water point of diversion a new ground-water appropriation?  The Supreme Court has held that it is not and has remanded the case to the District Court for further findings. 

MRGCD v. Turner, D-202-CV-88-14157  William Turner, was a Member of the Board of the Middle Rio Grande Conservancy District from June, 2005 until June 2009.  He was elected on a platform of improved governance, accountability, transparency and the creation of a long-term capital improvement program.  He was also elected to end the feudal governance system in which the Executive ran the District and the Board was a rubber-stamp Board.  He immediately began to reveal irregularities that gained significant press coverage.  He sued Board Members for violating the Open Meetings Act.  Early on he brought a Declaratory Judgment suit against the District to get his name on the Ballot.  He voiced his opinion that the MRGCD "water bank" was illegal and resulted in what the State Engineer calls "double dipping".  He found the District placing demolition and construction waste in the ditches and calling it rip rap. All of this brought considerable light upon the way in which the District operates.  This all culminated on July 3, 2006 when the Board of Directors sued him in Socorro County to remove him from the board.  Turner had made a motion to file the suit in Bernalillo County if it were going to be filed because the court in Socorro County had no jurisdiction.  Attorney Charles DuMars had already prepared the filing documents when the July 3, 2006 meeting of the Board was held.  In the end, Judge Reynolds dismissed the suit without prejudice for lack of jurisdiction.  Without approval of the Board, DuMars filed the suit immediately with the Conservancy Court in Bernalillo County.  As matters progressed and time rolled on trial approached.  On the day the trial was to begin, Turner's attorney, Martin Threet, pointed out to Judge Baca that the MRGCD Election regulations allowed removal in a manner similar to that permitted for other public officials and not under the 1923 Act that created the Conservancy District at which time the Court appointed Directors.  Judge Baca allowed an interlocutory appeal on which statute applied.  The appeals court after full briefing denied the interlocutory appeal on the grounds that the MRGCD did not have standing to bring the matter as they could not be an interested party. The MRGCD Board subsequently voted to drop the suit but Turner has kept it moving forward so that the MRGCD Executive and their attorney and a rubber-stamp Board cannot use the same stratagem to intimidate future Board Members by threatening them with removal under an illegal process.  The suit was dismissed by Judge Baca but will be appealed by Turner who will seek non-suit.

The great number of cases have among them overlapping issues such that the court must be constrained to apply the low correctly to avoid a miasma of contradictory rulings.  Fiction, persiflage and sesquipedalian tergiversation from the State Engineer in his attempt to destroy private property rights and his attempt to socialize water rights must not stand.
 

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