252 P.3d 708
N.M. Ct. App.2011Background
- DWS 72-12-1.1 facial constitutionality challenge under the priority doctrine in a fully appropriated Mimbres Basin.
- Bounds, a senior water-rights owner, sues the State Engineer to enjoin automatic domestic-well permits and to require consideration of unappropriated water and potential impairment.
- District court held the DWS unconstitutional on its face as an impermissible exception to priority and ordered the Engineer to treat domestic-well applications like other groundwater applications.
- Court upholds DWS facially, holding the priority doctrine is a broad principle and permits legislative exceptions; the Engineer administers water use and may adopt related regulations.
- Legislation moved domestic-well (and livestock) provisions into stand-alone sections in 2003; DWS requires issuance of permits upon filing without prior water-availability evaluation or impairment finding; regulations and orders exist to guide administration.
- Court notes the controversy involves balancing senior rights protection with domestic-use needs and defers to Legislature and Engineer for an administrative framework that can adapt to scarcity and priority needs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the DWS facially unconstitutional under the priority doctrine? | Bounds argues automatic permitting without unappropriated-water review harms senior rights. | State and Engineer contend priority doctrine is flexible and permits exceptions; statute provides administrative process. | No; DWS not facially unconstitutional. |
| Does the priority doctrine prohibit a legislative exception allowing domestic wells in a fully appropriated basin? | Domestic-use permits undermine senior rights by premising priority on new withdrawals. | Legislature can create exceptions; State Engineer can administer to protect senior rights as needed. | No; priority doctrine is broad; exceptions may be valid. |
| Is the DWS self-executing or must the Legislature provide a comprehensive process? | DWS operates without evaluating unappropriated water or impairment. | Legislation and Engineer rules create an administrative framework to protect rights. | Not self-executing; legislative framework permissible. |
Key Cases Cited
- Lion's Gate Water v. D'Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622 (N.M. 2009) (state may deny new appropriations when water is unavailable; efficiency of administrative process)
- Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, 141 N.M. 21, 150 P.3d 971 (N.M. 2006) (impairment of rights case; per se impairment rejected; impairment depends on facts)
- Herrington v. State ex rel. Office of State Engineer, 2006-NMSC-014, 139 N.M. 368, 133 P.3d 258 (N.M. 2006) (Templeton considerations; cautions about protecting senior rights amid domestic uses)