385 P.3d 626
N.M.2016Background
- The Ralston Ditch diverts Animas River water at a headgate in Colorado and delivers surface water into New Mexico to irrigate acreage adjudicated in the Echo Ditch Decree (364.2 acres).
- Petitioners (Diamond K Bar Ranch and trustees) hold adjudicated Ralston Ditch water rights appurtenant to portions of that acreage but are alleged to be irrigating additional, non-adjudicated land and using more water than their adjudicated allotment.
- The State Engineer sued, seeking an injunction under NMSA 1978, § 72-5-39 to enjoin unlawful diversion/use and to require a permit where no valid right exists for the additional use.
- Petitioners moved to dismiss, arguing (1) Turley v. Furman limits the State Engineer’s jurisdiction over water diverted in Colorado before entry into New Mexico; (2) waters conveyed by an artificial ditch become private and outside State Engineer regulation; and (3) the Ralston Ditch (an existing community acequia) and pre-1907 rights exempt them from permit requirements for the additional use.
- The district court denied dismissal; the New Mexico Supreme Court granted certiorari and affirmed, holding the State Engineer may regulate the use of Animas River water when applied to lands in New Mexico and may require permits for new, expanded, or modified uses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State Engineer may regulate/use of Animas River water diverted in Colorado but applied in New Mexico | State Engineer: Yes — waters entering NM remain public/unappropriated until applied and are subject to regulation; injunction authority applies to unlawful diversions/uses | Petitioners: No — Turley limits extraterritorial regulation; once diverted into an artificial ditch in CO, water becomes private and outside NM jurisdiction | Held: State Engineer has authority to regulate and require permits for water applied in NM, even if diverted in CO |
| Whether mere diversion into an artificial ditch creates a private right outside State control | State Engineer: Diversion alone is not appropriation; beneficial use in NM is what vests rights and triggers regulation | Petitioners: Conveyance by ditch makes the water artificial/private and not subject to NM water code | Held: Diversion does not change source/character; water remains public until appropriated by beneficial use and is regulated by State Engineer |
| Whether Turley v. Furman bars State Engineer jurisdiction here | State Engineer: Turley limited to extraterritorial permitting and is inapplicable because dispute concerns use in NM, not diversion construction in CO | Petitioners: Turley supports lack of NM territorial jurisdiction over waters diverted outside NM | Held: Turley is inapplicable — it addressed attempting to permit a diversion located in CO; it does not prevent NM regulation of use within NM |
| Whether pre-1907/community acequia status or adjudication of the ditch exempts Petitioners from permit requirements for expanded/new uses | State Engineer: Existing acequia or pre-1907 rights do not excuse changes in amount or place of use; changes require permit/approval | Petitioners: Ralston Ditch is an existing community ditch and pre-1907 rights exempt them from permit requirements | Held: Ditch exemption applies to the carrier, not to changes in amount/place of use; users must obtain permits for new/expanded/changed uses despite acequia status |
Key Cases Cited
- Turley v. Furman, 16 N.M. 253, 114 P.278 (Terr. N.M. 1911) (held territorial engineer lacked authority to permit a diversion located outside New Mexico)
- Tri-State Generation & Transmission Ass'n, Inc. v. D'Antonio, 289 P.3d 1232 (N.M. 2012) (describing the State Engineer's statutory powers and limits under the water code)
- Walker v. United States, 162 P.3d 882 (N.M. 2007) (explaining prior appropriation and beneficial use as the measure of water rights)
- Snow v. Abalos, 140 P.1044 (N.M. 1914) (holding diversion alone is not appropriation; beneficial use required to vest a right)
- State ex rel. Martinez v. City of Las Vegas, 89 P.3d 47 (N.M. 2004) (discussing scarcity of water in NM and the constitutional basis for prior appropriation)