5 N.M. 577
N.M. Ct. App.2014Background
- City applied to divert native Rio Grande water to carry SJCP water for a drinking water project; the basin is fully appropriated and no new surface water rights are allowed absent appropriation.
- Application sought to divert up to about 94,000 af/y with roughly half native Rio Grande water and half SJCP water, asserting the Rio Grande water would be non-consumptively used and returned to the river; no appropriation for the native water was requested.
- OSE granted a permit with conditions addressing flow, return, and impairment, after extensive hearings; Protestants challenged on jurisdiction, primary jurisdiction, and summary-judgment issues.
- Court granted Protestant motion for rehearing, withdrew the prior opinion, and issued a new decision reversing the district court in part and remanding for issuance of a corrected permit.
- The opinion affirms the district court on some issues but remands to the OSE to reissue the permit consistent with the Court’s ruling on beneficial use and appropriation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OSE had jurisdiction to act without explicit statutory invocation | Protestants: need explicit invocation of 72-5-1/24 | Albuquerque: OSE has broad authority and jurisdiction under 72-2-1, 72-5-1, 72-5-24 | OSE jurisdiction affirmed; explicit invocation not required. |
| Whether diversion of native Rio Grande water for a non-consumptive use constitutes a new beneficial use requiring appropriation | Protestants: no new appropriation; non-consumptive use not beneficial | Applicant: non-consumptive use may be beneficial and permitted with appropriate review | Diversion for a non-consumptive, beneficial use requires appropriation in fully appropriated basins; remand for proper permit. |
| Whether recusal of State Engineer was required | Protestants: D’Antonio had prejudged the case | No prejudgment shown; familiarity with facts did not mandate recusal | Recusal not required; no prejudgment shown. |
| Whether doctrine of primary jurisdiction barred or was applicable; adequacy of Compact compliance findings | Protestants: OSE should decide Compact compliance; district court erred | Court: primary jurisdiction inapplicable; Compact analysis adequate | Primary jurisdiction not applicable; Compact compliance findings sufficient; remand on permit terms. |
Key Cases Cited
- Clodfelter v. Reynolds, 68 N.M. 61, 358 P.2d 626 (1961) (statutory invocation not required to review under broad OSE authority)
- Lion’s Gate Water v. D’Antonio, 147 N.M. 523, 226 P.3d 622 (NMSC 2009) (OSE broad power to review applications; beneficial use concept broad)
- Montgomery v. Lomos Altos, Inc., 141 N.M. 21, 150 P.3d 971 (NMSC 2007) (impairment and priorities under carefully tailored impairment analysis)
- State ex rel. State Eng’r v. Comm’r of Pub. Lands, 145 N.M. 433, 200 P.3d 86 (NMCA 2009) (beneficial use and appropriation framework; non-consumptive uses considered)
- McLean v. McLean, 62 N.M. 264, 308 P.2d 983 (NMSC 1957) (beneficial use as basis for rights; no right without beneficial use)
- McDermett (State ex rel.) v. N.M. Caselaw, 120 N.M. 327, 901 P.2d 745 (NMCA 1995) (non-consumptive use can be beneficial; need for ultimate beneficial use)