BOUNDS V. STATE EX REL. D’ANTONIO, 2013-NMSC-037,
306 P.3d 457
HORACE BOUNDS, JR.,
Plaintiff-Petitioner,
v.
STATE OF NEW MEXICO, ex rel. JOHN R. D’ANTONIO, JR., New
Mexico State Engineer, Defendant-Respondent.
and
NEW MEXICO FARM & LIVESTOCK BUREAU, Intervenor-Petitioner,
v.
STATE OF NEW MEXICO, and JOHN R. D’ANTONIO, JR., NEW
MEXICO STATE ENGINEER, Defendants-Respondents
Docket No. 32,713, Docket No. 32,717
SUPREME COURT OF NEW MEXICO
2013-NMSC-037, 306 P.3d 457
ORIGINAL PROCEEDINGS ON CERTIORARI, J.C. Robinson,
District Judge.
Released for Publication August 27,
2013.
Law Office of Beverly Singleman, Beverly
J. Singleman, Mesilla Park, NM, Miller Stratvert, P.A., Joshua L. Smith, Las
Cruces, NM, for Petitioner Horace Bounds.
Hennighausen & Olsen, L.L.P., Arnold
J. Olsen, Alvin F. Jones, Jeff Grandjean, Roswell, NM, for Petitioner New
Mexico Farm & Livestock Bureau.
D.L. Sanders, Martha Clark Franks, Santa
Fe, NM, for Respondents.
Eugene I. Zamora, Marcos D. Martinez,
Santa Fe, NM, for Amicus Curiae City of Santa Fe.
Calvert Menicucci, P.C., Sean R. Calvert,
Albuquerque, NM, Kegler, Brown, Hill & Ritter, Co. L.P.A., Donald W.
Gregory, Jeremiah E. Thomas, Columbus, OH, for Amicus Curiae National Ground
Water Association.
Peifer, Hanson & Mullins, P.A.,
Tiffany Elaine Dowell, Albuquerque, NM, Law Offices of Jesse J. Richardson,
Jr., Jesse J. Richardson, Jr., Blacksburg, VA, for Amicus Curiae Water Systems
Council.
Taylor & McCaleb, P.A., Jolene
Lucille McCaleb, Elizabeth Newlin Taylor, Corrales, NM, for Amicus Curiae New
Mexico Ground Water Association.
Law & Resource Planning Associates,
P.C., Charles Thomas DuMars, Stephen Curtice, Albuquerque, NM, for Amici Curiae
4 Daughters Land & Cattle Company, Great Western Ranch, LLC, Sanders Land
& Cattle, Inc.
RICHARD C. BOSSON, Justice. WE CONCUR:
PETRA JIMENEZ MAES, Chief Justice, EDWARD L. CHÁVEZ, Justice, CHARLES W.
DANIELS, Justice, BARBARA J. VIGIL, Justice.
AUTHOR: RICHARD C. BOSSON.
{1} Horace Bounds is a
rancher and farmer in the Mimbres basin in southwestern New Mexico, a fully
appropriated and adjudicated basin. Bounds, joined by the New Mexico Farm and
Livestock Bureau (collectively Petitioners), brought a facial constitutional
challenge against the New Mexico Domestic Well Statute (DWS), NMSA 1978,
Section
72-12-1.1 (2003), which requires the State Engineer to issue domestic
well permits without determining the availability of unappropriated water.
Petitioners contend that the DWS violates the New Mexico constitutional
doctrine of prior appropriation as well as due process of law. Petitioners’
arguments persuaded the district court but not the Court of Appeals, which
reversed in a published opinion. Agreeing with the substance of that opinion,
we affirm the Court of Appeals. For the reasons that follow, we hold that the
DWS does not violate either the doctrine of prior appropriation set forth in
the New Mexico Constitution or the guarantees of due process of law.
{2} Bounds has the
adjudicated right to irrigate 157.63 acres of farm and ranchland with some of
the most senior surface water rights along the Upper Mimbres. At the time of
this suit, Bounds had fewer than 100 head of cattle, and much of his water rights
were used for irrigated pasture to support the herd; the primary purpose of the
farm is livestock feed.
{3} This case began on
June 15, 2006, when Bounds filed an action for declaratory judgment in the
Sixth Judicial District Court. The first count of his complaint asked the
district court to declare the DWS unconstitutional because it requires the
State Engineer to issue domestic well permits without regard to the
availability of unappropriated water, to the detriment of senior water users
and in violation of the doctrine of prior appropriation. The second count
sought a declaration that the issuance of domestic well permits under the DWS
constitutes a taking of vested property rights without compensation, in
violation of the United States Constitution, the New Mexico Constitution, and
42 U.S.C. § 1983 (2006). Finally, Bounds sought an injunction preventing the
State Engineer from issuing new domestic well permits without first determining
that unappropriated water is available.
{4} Before he filed this
suit asking the district court to enjoin the State Engineer from issuing
further permits under the DWS, Bounds took full advantage of the statute’s
simple permitting procedures. According to the record, he currently has five
domestic and livestock wells, most recently drilled in 2005 and all acquired
under the same permitting process that Bounds now challenges. Bounds also
enjoyed the benefit of this statute when he subdivided and sold a portion of
his farm in 1998. According to the State Engineer, the twelve-lot “subdivision
was approved by Grant County, New Mexico, for the sale of individual lots to be
served by domestic wells.” Jo Bounds, Horace’s wife, testified that four of the
twelve lots have been developed, leaving five to eight lots yet to drill domestic
wells.
{5} The New Mexico Farm
and Livestock Bureau (NMFLB) filed a motion to intervene. NMFLB is an
independent, nongovernmental entity that represents over 14,000 farm and ranch
families, and advocates on their behalf in the state Legislature as well as in
state and federal courts. The district court granted the motion to intervene.
{6} After the case was
delayed for reasons not relevant to this appeal, the State Engineer filed a
motion for summary judgment. The State Engineer argued that the DWS “is a clear
expression of legislative intent to treat certain necessary water uses
differently,” and that “[i]n creating this distinction, the Legislature has
articulated a class of uses of public water that is reasonably subject to
treatment outside the scope of the general scheme of appropriations.”
Thereafter, the parties stipulated to allowing the court to decide the legal
issues presented on the pleadings, record, and evidence submitted.
{7} The district court
ultimately concluded that the DWS is unconstitutional as a matter of law
“because it creates an impermissible exception to the priority administration
system.” The court reasoned that “[i]t 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.” In addition, the
court found a lack of evidence to support Bounds’ claim of impairment of
existing rights or his claim to related monetary damages. The court dismissed
Bounds’ takings claim. The State Engineer appealed the district court’s
constitutional ruling to the Court of Appeals.
{8} Reversing the
district court, the Court of Appeals declared that the prior appropriation
doctrine, enshrined in Article XVI of the New Mexico Constitution, is “a broad
priority principle, nothing more,” an observation that has caused consternation
among New Mexico’s water community.
Bounds v. State,
2011-NMCA-011, ¶
37,
149 N.M. 484,
252 P.3d 708. Noting that the prior-appropriation doctrine in
the New Mexico Constitution is not self-executing, the Court of Appeals
observed that “a particular priority administration process is not dictated by
the priority doctrine but instead is in the Legislature’s hands pursuant to its
authority to enact statutes providing for the administration of appropriation
and use of surface and groundwater.”
Id. ¶ 42. Ultimately, the Court of
Appeals concluded that
the priority doctrine [in the New
Mexico Constitution] is not a system of administration. It does not dictate any
particular manner of administration of appropriation and use of water or how
senior water rights are to be protected from junior users in time of water
shortages. That the Legislature determines that domestic well permits are to be
issued upon application without prior evaluation of water availability or
impairment is not, in and of itself, a per se violation of the priority
doctrine or of the Legislature’s constitutional duty to assure that senior
water rights are protected under the priority doctrine. Although a basin is
considered fully appropriated with no unappropriated water available, we do not
see how the Legislature is forbidden under a facial constitutional attack from
nevertheless enacting an exception to its existing statutory regime permitting
additional appropriation for domestic purposes as long as senior water rights
are not in fact impaired or subject to impending impairment . . . .
{9} Bounds and NMFLB
filed separate petitions for certiorari to review both the holding and the
reasoning of the Court of Appeals opinion in light of its broad public policy
implications, which this Court granted.
See 2011-NMCERT-001, 150 N.M.
558, 560, 263 P.3d 900, 902. For the reasons that follow, we affirm the facial
constitutionality of the DWS.
{10} Petitioners present
two basic arguments for consideration. First, because the DWS requires the
State Engineer to issue domestic well permits without regard to whether
unappropriated water is available, the DWS creates an impermissible exception
to the language of
Article XVI, Section 2 of the New Mexico Constitution which
states that “priority of appropriation shall give the better right.” Second, a
failure to provide notice and an opportunity to be heard prior to issuing a
domestic well permit violates Petitioners’ due process rights.
1
{11} Each of these
arguments presents a constitutional challenge to the DWS. A constitutional
challenge to a statute is reviewed de novo.
Tri-State Transmission &
Generation Ass’n v. D’Antonio,
2012-NMSC-032, ¶ 11,
289 P.3d 1232.
‘“It
is well settled that there is a presumption of the validity and regularity of
legislative enactments.’”
State ex rel. Udall v. Pub. Emps. Ret. Bd.,
120 N.M. 786, 788,
907 P.2d 190, 192 (1995) (quoting
Espanola Hous. Auth. v.
Atencio,
90 N.M. 787, 788,
568 P.2d 1233, 1234 (1977)). We will uphold a
statute “unless we are satisfied beyond all reasonable doubt that the
Legislature went outside the bounds fixed by the Constitution in enacting the
challenged legislation.”
Id. We do not “inquire into the wisdom or
policy of an act of the Legislature.”
Id. Rather,
[w]e presume that the Legislature
has performed its duty, and kept within the bounds fixed by the Constitution.
Further, if possible, we will give effect to the legislative intent unless it
clearly appears to be in conflict with the Constitution. We will not question
the wisdom, policy, or justness of a statute, and the burden of establishing
that the statute is invalid rests on the party challenging the
constitutionality of the statute. An act of the Legislature will not be
declared unconstitutional in a doubtful case, and . . . if possible, it will be
so construed as to uphold it.
{12} Petitioners’ first
argument is relatively straightforward. As NMFLB explains,
[i]n 1972, the State Engineer
declared the Mimbres Basin to be closed and as such, no additional water was
available for appropriation. Thus, when the State Engineer made the
determination that no additional water was available for appropriation, he
became bound by the constitutional provisions of N.M. Const. art. XVI, §§ 1, 2,
and 3, and NMSA 1978, § 72-12-4. No further permits could be issued for the
appropriation of groundwater in the Mimbres Basin.
Accordingly, the argument goes,
if the DWS requires the State Engineer to issue domestic well permits when
there is no additional water available for appropriation, the statute must
necessarily impact senior water users whose rights are secured by the New
Mexico Constitution. As an initial matter, we address certain basic flaws in
this and other arguments advanced by Petitioners.
{13} First and foremost,
Petitioners have brought a facial challenge. In the district court, Bounds was
unable to show any actual injury, any impairment of his existing senior rights
as a result of the DWS. Accordingly, Bounds was unable to pursue an as-applied
challenge in which specific facts would be relevant and was left with only a
facial challenge.
{14} However, the facts
laid out above—relating specifically to Bounds’ situation in the Mimbres
basin—are not relevant in a facial challenge.
2
Generally, “[i]n a facial challenge to [a statute], we consider only the text
of the [statute] itself, not its application; whereas, in an as-applied
challenge, we consider the facts of the case to determine whether application
of the [statute] even if facially valid deprived the challenger of a protected
right.”
Vill. of Ruidoso v. Warner,
2012-NMCA-035, ¶ 5,
274 P.3d 791
(citing
Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174-75 (2d
Cir. 2006)). Looking at the specific situation in the Mimbres basin—a fully
appropriated and fully adjudicated basin—would require us to review the DWS as
applied to Bounds, or at least as applied to the basin, and Bounds was unable
to prove that the DWS caused any specific injury to himself or others.
{15} Second, a separate
argument advanced by Bounds—that the issuance of further permits in the Mimbres
basin necessarily impairs senior water users—would require this Court, in order
to rule for Petitioners, to hold that a new domestic well permit for taking
water in a fully appropriated basin, even for only one well, constitutes
impairment as a matter of law. Yet, under our well-established case law, this
Court has repeatedly rejected the notion of impairment as a matter of law, or
per se impairment as it has been called in the past.
See Mathers v. Texaco,
Inc.,
77 N.M. 239, 245-46,
421 P.2d 771, 776-77 (1966);
Montgomery v.
Lomos Altos, Inc.,
2007-NMSC-002, ¶¶ 21-25,
141 N.M. 21,
150 P.3d 971. In
Montgomery
we explicitly stated that
this Court has refused to make any
bright-line rule regarding what constitutes impairment. “[T]he question of
impairment of existing rights is one which must generally be decided upon the
facts in each case, and . . . a definition of ‘impairment of existing rights’
is not only difficult, but an ‘attempt to define the same would lead to severe
complications.’”
Montgomery, 2007-NMSC-002, ¶ 21 (alterations in
original) (quoting Mathers, 77 N.M. at 245, 421 P.2d at 776).
Accordingly, there can be no constitutional challenge to the statute without at
least a specific probability of impairment in a given case. The constitutional
principles of prior appropriation are not in peril when senior water users
cannot demonstrate a concrete risk of impairment—that they are in danger of
losing the very water guaranteed them by that same prior appropriation doctrine.
{16} Under our precedent,
we could decline to reach the merits of this case. That said, however, we
exercise our discretion to decide these important issues. As we stated in
City
of Albuquerque v. Campos, “[i]f, as in the present case, the questions of
public importance are likely to recur, . . . reason exists for the exercise by
this court of its inherent discretion to resolve those questions.”
86 N.M. 488,
491,
525 P.2d 848, 851 (1974).
{17} In the present case,
it would make little sense to dismiss Petitioners’ claims because the issues
would remain. We would merely be forcing these parties or others to litigate
the same issues from the beginning, but in an as-applied challenge, all the
while the legal questions regarding the constitutionality of the DWS statute
would remain.
{18} In addition, we have
a Court of Appeals opinion that should be addressed. Before the Court of
Appeals, the State Engineer expressed a public-interest “preference” that the
judiciary “reach and decide the constitutional issue,” a preference to which we
are not bound but one which we afford due respect.
See Bounds,
2011-NMCA-011,
¶ 13. Rather than avoid these difficult but important legal issues, we choose
to decide them now as they were briefed by Petitioners and addressed by the
State Engineer. We will consider Petitioners’ argument as a facial challenge in
relation to a fully appropriated, closed, and adjudicated basin.
C. Relevant
Legal Framework—the New Mexico Constitution, Statutes, and Regulations
{19} Embedded in the New
Mexico Constitution are some of the most basic and universal principles of
prior appropriation. These include the right to appropriate public waters for
beneficial use, one of the defining features of prior appropriation.
See
A. Dan Tarlock,
The Future of Prior Appropriation in the New West, 41
Nat. Res. J. 769, 770 (2001).
Article XVI, Section 2 of the New Mexico
Constitution reads: “The unappropriated water of every natural stream,
perennial or torrential, within the state of New Mexico, is hereby declared to
belong to the public and to be subject to appropriation for beneficial use, in
accordance with the laws of the state. Priority of appropriation shall give the
better right.” It is the language “[p]riority of appropriation shall give the
better right” that renders the DWS unconstitutional, according to Petitioners,
because the statute requires the State Engineer to issue domestic well permits
even in the face of a fully appropriated water basin.
{20} In 1953, the New
Mexico Legislature passed the predecessor to the current DWS. N.M. Laws 1953,
ch. 61, § 1. Similar to the present DWS, then codified at NMSA 1953, Section
75-11-1 (1953), the exemption read, in part, as follows:
By reason of the varying amounts
and time such water is used and the relatively small amounts of water consumed
in the watering of livestock, in irrigation of not to exceed one [1] acre of
noncommercial trees, lawn or garden; in household or other domestic use, and in
prospecting, mining or construction of public works, highways and roads or
drilling operations designed to discover or develop the natural resources of
the state of New Mexico, application for any such use shall be governed by the
following provisions,
Any
person, firm or corporation desiring to use any of the waters described in this
act for watering livestock, for irrigation of not to exceed one [1] acre of
noncommercial trees, lawn, or garden; or for household or other domestic use
shall make application or applications from time to time to the state engineer
on a form to be prescribed by him. Upon the filing of each such application,
describing the use applied for, the state engineer shall issue a permit to
the applicant to so use the waters applied for.
Id. (emphasis added). Thus, wells for “household or
other domestic use,” along with other minimally consumptive uses, required an
application with certain disclosures, but the language “shall issue” made the
permit automatic without publication and notice to other users.
{21} The statute remained
largely unchanged until 2003. In that year, the Legislature split the statute
into separate sections for domestic, livestock, and temporary uses. The new
version of NMSA 1978, Section
72-12-1 (2003) remained a policy statement,
features language similar to the previous version, and now reads as follows:
The
water of underground streams, channels, artesian basins, reservoirs or lakes,
having reasonably ascertainable boundaries, is declared to belong to the public
and is subject to appropriation for beneficial use. By reason of the varying
amounts and time such water is used and the relatively small amounts of water
consumed in the watering of livestock; in irrigation of not to exceed one acre
of noncommercial trees, lawn or garden; in household or other domestic use; and
in prospecting, mining or construction of public works, highways and roads or
drilling operations designed to discover or develop the natural resources of
the state, application for any such use shall be governed by the provisions of
Sections 72-12-1.1 through 72-12-1.3 NMSA 1978.
The portion dealing with
domestic wells was recodified to NMSA 1978, Section 72-12-1.1 (2003). It states
that
A
person, firm or corporation desiring to use public underground waters described
in this section for irrigation of not to exceed one acre of noncommercial
trees, lawn or garden or for household or other domestic use shall make
application to the state engineer for a well on a form to be prescribed by the
state engineer. Upon the filing of each application describing the use applied
for, the state engineer shall issue a permit to the applicant to use the
underground waters applied for; provided that permits for domestic water use
within municipalities shall be conditioned to require the permittee to comply
with all applicable municipal ordinances enacted pursuant to Chapter 3, Article 53 NMSA 1978.
Section 72-12-1.1 (emphasis added).3
{22} By contrast, NMSA
1978, Section
72-12-3 (2001), sets out the permitting process prescribed for
most other ground water appropriations, such as those for agricultural and
industrial use, but which does not apply to permits for domestic wells.
According to Section 72-12-3(D), the State Engineer is required, upon the
filing of an application, to cause notice to be published in a newspaper.
Thereafter, any person claiming that the new appropriation will impair existing
water rights must be allowed to protest the application.
Id. Even if no
one objects,
the state engineer shall, if he
finds that there are in the underground stream, channel, artesian basin,
reservoir or lake unappropriated waters or that the proposed appropriation
would not impair existing water rights from the source, is not contrary to
conservation of water within the state and is not detrimental to the public
welfare of the state, grant the application and issue a permit to the applicant
to appropriate all or a part of the waters applied for, subject to the rights
of all prior appropriators from the source.
Section 72-12-3(E). According to Petitioners, the
requirements of notice, opportunity to be heard, and prior determination of
unappropriated waters or lack of impairment found in Section 72-12-3 are
required by the New Mexico Constitution to be applied to domestic wells as
well.
{23} In 2006, the State
Engineer promulgated regulations specifically for domestic wells.
See 19.27.5
NMAC (8/15/2006, as amended through 10/31/2011). These regulations allow the
State Engineer to manage domestic wells in various ways. For example,
19.27.5.13 NMAC subjects domestic wells to certain conditions of approval, the
most important of which is curtailment to protect existing water rights in
times of shortage: “The right to divert water under [a domestic well] permit is
subject to curtailment by priority administration as implemented by the state
engineer or a court.”
19.27.5.13(B)(11) NMAC.
{24} In addition to
imposing conditions upon domestic well permits, the regulations also provide
for the State Engineer to “declare all or part of a stream connected aquifer as
a domestic well management area
to prevent impairment to valid existing
surface water rights.”
19.27.5.14 NMAC (emphasis added). This and other
regulations allow the State Engineer to declare a management area and create
specific administrative guidelines for that particular basin to ensure that
senior surface water users are not harmed by junior domestic wells.
See 19.27.5.14(A).
In addition, the regulations significantly reduce the maximum diversion from
new domestic wells in the management area to 0.25 acre-feet per year or even
less, as required by the State Engineer.
See 19.27.5.14(C).
{25} With this background
in mind regarding the relevant statutes, regulations, and constitutional
provisions, we now turn to Petitioners’ allegations of facial
unconstitutionality.
D. The
DWS Is Not Facially Unconstitutional
{26} Looking at the language
in
Article XVI, Section 2 of the New Mexico Constitution upon which Petitioners
rely—“[p]riority of appropriation shall give the better right”—it is clear that
priority administration, including curtailment when justified, is what this
Section mandates. “Shall give the
better right” is a phrase meant to
apply to two existing, yet competing, water rights. This phrase implies that
two rights are at issue, since if there were only one right, that right could
not be
better, as there would be nothing to be better than. “Priority of
appropriation” tells us
how to determine which right is better. Thus,
the entire phrase “priority of appropriation shall give the better right” is
meant to dictate how conflicts between water users can be resolved—by priority
administration—in which junior users are diminished or cut off when necessary
in favor of senior users. In short, this language means that priority
administration—exactly what Petitioners desire to protect their senior water
rights—may be used to determine how water is allocated in times of shortage.
This language deals with how rights, already acquired, will be administered.
{27} This portion of the
New Mexico Constitution does not mandate any particular
permitting
procedure. In fact, this language does not appear to pertain to how one
acquires
a water right, as opposed to how that right is
used and
administered.
{28} The DWS, on the
other hand, is a permitting statute. It dictates the procedure for how one
acquires a permit to drill a domestic well. The DWS does relieve the applicant
from certain statutory requirements that are applied to other applications for
water rights. The statute does not, however, dictate how the permit is
administered. In fact, the DWS is entirely silent as to how permits issued
under that statute are administered. Nothing in the language of the DWS
prevents domestic well permits from being administered in the same way as all
other water rights, including priority administration—exactly what
Article XVI,
Section 2 of the New Mexico Constitution requires.
{29} Theoretically, the
State Engineer could issue a domestic well permit and immediately administer
priority to curtail diversion under that permit. While this might seem absurd
at first glance, further examination suggests otherwise. In such an instance, a
permit—even if temporarily inoperative—would give the applicant a priority
date. Should conditions in the particular basin change, curtailment by priority
administration could be lifted, and the permit holder could then divert water
under that permit with a priority date set at the original date when the permit
issued. In this regard, the permit would serve as a placeholder should more
water become available in the future. The State Engineer has essentially done
this in the Gila basin, issuing permits that do not allow for an actual
diversion. Depending on the circumstances, the State Engineer could apply a
similar procedure elsewhere to meet a growing shortage of water and imminent
threat to senior water users.
{30} This discussion
reveals the basic flaw in Petitioners’ argument. Petitioners are mistakenly
equating the issuance of a permit under the DWS with an absolute right to take
and use water pursuant to that permit. It would only be in the case of such an
absolute water right that the mere issuance of a permit in a fully appropriated
basin would necessarily take water from senior users and impair senior water
rights. However, the DWS does not create such an unconditional right—at least
not on its face.
{31} All water rights,
including those of Petitioners as well as those created by the DWS, are
inherently conditional.
See, e.g.,
Tri-State,
2012-NMSC-032, ¶ 45
(“A junior water rights holder cannot complain of deprivation when its water is
curtailed to serve others more senior in the system . . . . Such are the
demands of our state’s system of prior appropriation.”). They do not create an
absolute right to take water. They are conditioned on the
availability of
water to satisfy that right. Water may not be available for a number of
reasons, including drought or the lack of priority due to unsatisfied demand of
senior water rights. Accordingly, the DWS, which deals solely with permitting
and not administration, cannot facially be in conflict with
Article XVI,
Section 2 of the New Mexico Constitution.
E. Regulation
of Domestic Wells to Protect Senior Water Rights
{32} We now turn to the
administrative regulations regarding domestic wells currently in place with the
State Engineer. We find these regulations informative as to how the actual use
of domestic wells can be administered in such a way as to protect senior water
users. Today, domestic well permits are more regulated and integrated into the
administrative system than ever before. Regulations allow the State Engineer to
effectively deal with some of the practical effects of the issues raised in
this case, including ways to mitigate the effects of domestic wells on water
shortages.
{33} By regulation, the
State Engineer has reduced the default maximum allowable diversion from three
acre-feet to one acre-foot per year and per well per household.
See 19.27.5.9(D)(1)
NMAC. Presumably, this was done to mitigate the effects that hundreds of
domestic wells, considered in the aggregate, could have on a particular basin.
Logically, limiting domestic wells in such a way should reduce their impact
simply by forcing the well owners to pump less water.
{34} Regulations also
provide for the creation of “Domestic Well Management Areas,” discussed
previously, which allow the State Engineer greater power to protect senior
water users.
19.27.5.14 NMAC. In fact, the stated purpose of Domestic Well
Management Areas is “to prevent impairment to valid, existing surface water
rights.”
Id. Once a Domestic Well Management Area has been declared, the
State Engineer is required to “develop administrative guidelines for each
declared domestic well management area” that are “based on the hydrologic
conditions of the domestic well management area and the valid, existing water
rights located therein.”
19.27.5.14(A) NMAC. Thus, for each Domestic Well
Management Area, the State Engineer must determine, based on the specifics of
that particular basin, how to manage future domestic wells to prevent harm to senior
water users.
{35} Significantly,
according to the very permits that authorize them, domestic wells are “subject
to curtailment by priority administration as implemented by the state engineer
or a court.”
19.27.5.13(B)(11) NMAC. Curtailment by priority administration
authorizes the State Engineer to limit water use administratively in times of
water shortage to protect senior water rights.
See NMSA 1978, §
72-2-9
(1907) (giving the State Engineer authority to supervise the apportionment of
water in New Mexico).
{36} Despite these legal
provisions for priority administration of domestic wells, Petitioners argue
that for practical and political reasons the State Engineer will never really
curtail domestic wells. Petitioners rely on the deposition of former State
Engineer John D’Antonio, in which he stated that he would not curtail
indoor
use of a domestic well. The district court incorrectly took this deposition
testimony to mean that Mr. D’Antonio would
never curtail domestic wells
in any manner. We understand the concern. This Court has previously noted the
practical challenges facing the state in curtailing the use of domestic wells.
See
Herrington v. State of N.M. ex rel. Office of State Eng’r,
2006-NMSC-014, ¶
50,
139 N.M. 368,
133 P.3d 258.
{37} But such speculation
about what the State Engineer may or may not do in the future cannot form the
basis of a facial challenge in the present. As of 2012, Mr. D’Antonio is no
longer the State Engineer, and as such his policy is subject to change at the
discretion of his successor. Without specific facts supporting an as-applied
challenge, we must assume that domestic wells will be administered as the
permits themselves are written: “subject to curtailment by priority
administration.”
19.27.5.13(B)(11) NMAC. In the absence of a record to the
contrary, we must assume that the State Engineer will fulfill the
responsibility and exercise the authority bestowed on that office by law.
Accordingly, Petitioners’ reliance on Mr. D’Antonio’s deposition to claim that
domestic wells will never be curtailed in any fashion is simply shortsighted.
That reliance offers no support for a facial constitutional challenge to the
DWS.
{38} In addition to
curtailment by priority administration, “[t]he drilling of the well and amount and
uses of water permitted are subject to such limitations as may be imposed by
the courts or by lawful municipal and county ordinances which are more
restrictive than the conditions of this permit and applicable state engineer
regulations.”
19.27.5.13(B)(6) NMAC. Therefore, not only are domestic well
permits subject to curtailment by the State Engineer, they are explicitly
subject to limitations by our courts and by local ordinance, should such a need
arise after a proper evidentiary showing.
{39} As a practical
matter then, domestic well permits, though issued upon application without
further inquiry, are subject in their
use to many of the same conditions
and restrictions as are well permits for other uses like agriculture and
industry. The State Engineer has designed these conditions to protect senior
water users—the very class of users that, according to Petitioners, is
threatened by the DWS. We have difficulty envisioning how a water permit that
is explicitly subject to curtailment by priority administration in times of
shortage, the very essence of prior appropriation and precisely what is
required by the language upon which Petitioners rely, can be at the same time
be an impermissible exception to that doctrine. Instead of creating an
exception to prior appropriation, we view the DWS as merely creating a
different, more expeditious permitting procedure for domestic wells.
{40} The Legislature
codified this simpler permitting process as a policy choice, something that the
New Mexico Constitution generally empowers our Legislature to do.
See N.M.
Constitution art. XVI, § 2 (“[U]nappropriated water . . . [is] subject to
appropriation for beneficial use,
in accordance with the laws of the state.”
(emphasis added)). It was understood by the Framers of the New Mexico
Constitution that laws would have to be passed, and in many instances were
already passed, to define the particulars of water right permitting and
administration in New Mexico. The Framers intended for the Legislature to
prescribe precisely how an appropriation would occur, subject to the limit of
beneficial use. Nothing in the constitutional language indicates that all
appropriations must have the same application procedures. Rather, it appears
that the New Mexico Constitution gives the Legislature the power to make such
policy choices and create different procedures for different appropriations.
{41} The Legislature and
the State Engineer have remained attentive since the DWS was first passed in
1953. The Legislature reaffirmed this policy in 2003 when it rewrote and
recodified the domestic well exemption.
See 2003 N.M. Laws ch. 298.
Domestic wells were again on the minds of the Legislature in the most recent
legislative session. Two bills were passed and signed into law to combat at
least some of the potential harmful effects of domestic wells.
See 2013
N.M. Laws chs. 173, 224.
{42} Codified as NMSA
1978, Section
3-20-9.1 (2013), one of the new statutes requires either State
Engineer approval of sufficient water or proof of water rights acquired by
means
other than a domestic well permit, before a subdivision plat may
be approved if water rights have been severed from the land upon which the
subdivision will sit. Presumably, the statute is directed at the practice of
“double dipping,” whereby a developer buys a farm with water rights, subdivides
the farm, then severs and sells the water rights to a third party, while having
the new homeowners drill individual domestic wells for each subdivided lot.
{43} The other new
statute, an amendment to NMSA 1978, Section
47-6-11.2 (2013), requires proof of
service from a water provider and approval from the State Engineer, or a right
to use water other than by a domestic well, for any subdivision of “ten or more
parcels, any one of which is two acres or less,” before the subdivision can be
approved. This appears to preclude dense clusters of domestic wells, and their
possible cumulative effect on senior water rights. Based on these new statutes,
we observe that the Legislature appears to be aware of potential problems
caused by domestic wells and has taken at least some remedial action short of
an outright repeal of the DWS to mitigate its effects.
{44} Thus, we cannot
conclude that the DWS, a permitting statute, conflicts irreconcilably with
Article XVI, Section 2 of the New Mexico Constitution. The Constitution does
not require identical permitting procedures for all appropriations. What is
required is priority administration for the protection of senior users, a
condition to which domestic well permits have been subject for some time. The
DWS only deals with how domestic wells are permitted, not how they are
administered. Thus, the DWS, at least on its face, does not conflict with
Article XVI, Section 2 and survives Petitioners’ facial challenge.
{45} Though Petitioners’
facial challenge proves unpersuasive, we emphasize that senior water users do
have other recourse under the law. A water user who is able to show actual or
impending impairment can make a priority call against junior users and, if that
fails, the water user could then file an as-applied challenge against the DWS.
The same protections for senior users apply against domestic wells as against
any other junior water right. We understand that showing such an impairment can
be a difficult task, but without more than the mere speculation of impairment
in the present case, we cannot take the drastic step of declaring a statute
unconstitutional that has served this state for sixty years.
{46} Accordingly, we hold
that the DWS does not on its face violate the New Mexico Constitution, and we
affirm the decision of the Court of Appeals to reverse the contrary ruling of
the district court. Our Court of Appeals has crafted a thoughtful, scholarly
analysis of the constitutional issues before us and the tensions those issues
expose regarding competing demands for a precious resource in the arid west.
Undoubtedly that tension will continue long after these Opinions issue. We
agree with the Court of Appeals that aggrieved citizens must look to the
Legislature and the State Engineer for relief from many of these problems,
seemingly so intractable. We urge our Legislature to be diligent in the
exercise of its constitutional authority over—and responsibility for—the
appropriation process. We equally urge the State Engineer to fulfill its
superintending responsibility by applying priority administration for the
protection of senior water users. Our courts remain available, based upon
sufficient evidence, to intervene in appropriate cases to ensure that “priority
of appropriation shall give the better right.”
{47} We do take issue
with the Court of Appeals’ opinion in certain of its observations regarding the
priority doctrine. For example, its conclusion that “[t]he Constitution’s
priority doctrine establishes a broad priority principle, nothing more” simply
goes too far.
See Bounds,
2011-NMCA-011, ¶ 37. One could read that
statement to mean that priority water rights are nothing more than an
aspiration, subject to legislative whim and administrative discretion. Such a
reading would be wrong, and it would be a mistake for future litigants to cite
the Court of Appeals opinion for any such proposition.
F. The DWS
Does Not Violate Petitioners’ Due Process Rights
{48} Petitioners also
claim that the DWS violates due process of law, both procedurally and
substantively. There is some question whether this particular issue was
abandoned below. The Court of Appeals considered due process abandoned and said
as much in its opinion.
Id. ¶ 13. The petition for writ of certiorari
raised the issue, specifically in one of the questions on which we granted
certiorari. Out of an abundance of caution, we will address the due process
issue, but only to the extent it was developed in the briefs.
{49} Petitioners argue
that “[u]ntil the State/Engineer bring domestic wells under the aegis of the
State Engineer’s administrative due process protections, the same as all other
applications for new groundwater appropriations, their actions are
unconstitutional and void.”
{50} Similar to the
Fourteenth Amendment of the United States Constitution,
Article II, Section 18
of the New Mexico Constitution states that “[n]o person shall be deprived of
life, liberty or property without due process of law.” “Due process involves
both substantive and procedural considerations.”
Madrid v. St. Joseph Hosp.,
1996-NMSC-064, ¶ 25,
122 N.M. 524,
928 P.2d 250. “Procedural due process
requires the government to give notice and an opportunity to be heard before
depriving an individual of liberty or property.”
Id. “Substantive due
process cases inquire whether a statute or government action shocks the
conscience or interferes with rights implicit in the concept of ordered liberty.”
Wagner v. AGW Consultants,
2005-NMSC-016, ¶ 30,
137 N.M. 734,
114 P.3d
1050 (internal quotation marks and citations omitted).
{51} We have said
numerous times that “[t]he threshold question in evaluating a due process
challenge is whether there is a deprivation of liberty or property.”
Mills
v. N.M. State Bd. of Psychologist Exam’rs,
1997-NMSC-028, ¶ 15,
123
N.M. 421,
941 P.2d 502;
cf. Bd. of Educ. of Carlsbad Mun. Schs. v.
Harrell,
118 N.M. 470, 477,
882 P.2d 511, 518 (1994) (“Before a procedural
due process claim may be asserted, the plaintiff must establish that he was
deprived
of a legitimate liberty or property interest . . . .” (emphasis added));
Barreras v. N.M. Corr. Dep’t,
114 N.M. 366, 370,
838 P.2d 983, 987 (1992)
(“In order to assert a procedural due process claim under the Fourteenth
Amendment, a plaintiff must establish
deprivation of a legitimate
liberty or property interest . . . .” (emphasis added));
Moongate Water Co.
v. State,
120 N.M. 399, 404,
902 P.2d 554, 559 (Ct. App. 1995) (In order to
prevail on a substantive due process claim, the plaintiff “must establish that
its property interests were
injured by governmental action that shocks
the conscience.” (emphasis added)). Presumably, a property interest in an
adjudicated water right would be entitled to due process protections, if
subjected to deprivation.
{52} As previously
discussed, however, Petitioners have been unable to demonstrate with any
specificity how the DWS caused or will cause any deprivation of their water
rights. Bounds was unable to show any actual impairment of his water rights
before the district court, as he received his full allotment of water. The only
potential impairment to Bounds was based on his assertion—with little
evidentiary support—that any new appropriations must necessarily cause
impairment in a closed and fully appropriated basin. We have already explained
the difference between a permit issued pursuant to the DWS, and the subsequent
use of that permit subject to priority administration.
{53} Bounds did provide
an expert who reasoned that because this is a fully appropriated basin, then
water for new appropriations, domestic wells included, must come from senior
users. This assertion was not based on the expert’s own scientific study of the
basin but rather the State Engineer’s determination that the basin was closed
to further
surface appropriations. The expert did not make any
calculations or present any models to quantify the effect of domestic wells on
Bounds’ water rights. We reject this kind of conclusory statement as a
substitute for scientific analysis. What Petitioners suggest is precisely the
bright line rule of impairment that this Court has rejected in the past.
See
Montgomery,
2007-NMSC-002, ¶ 24.
{54} Without any
demonstration of actual impairment or imminent future impairment to Bounds’
water rights, or at least something more than a speculative inference from the
fact of a closed and fully appropriated basin, the remaining due process
analysis is straightforward. Without a proven threat to water rights, there has
been no deprivation of property. Without a deprivation of property, there can
be no due process violation. Petitioners have not been deprived of anything—at
least not on this record—that is subject to either the procedural or substantive
protections of the due process clause. As the Washington Supreme Court stated
in
Lummi Indian Nation v. State, “the challengers have cited no case,
and we have found none, where mere potential impairment of some hypothetical
person’s enjoyment of a right has been held to be sufficient for a successful
facial due process challenge.” 241 P.3d 1220, 1231 (Wash. 2010). Accordingly,
we agree that such a facial due process challenge must fail.
See id. at
1232.
{55} For the above
reasons, we hereby affirm the Court of Appeals.
RICHARD C. BOSSON, Justice
PETRA JIMENEZ MAES, Chief Justice
CHARLES W. DANIELS, Justice
BARBARA J. VIGIL, Justice
Topic Index for Bounds v. State ex rel. D’Antonio,
Nos. 32,713/32,717
New Mexico Constitution, General