Walker v. United StatesWalker v. United States
{1} We are asked to answer two questions certified to us by the United States Court of Federal Claims, pursuant to
1. Does the law of the State of New Mexico recognize a limited forage right implicit in a vested water right?
2. Does the law of the State of New Mexico recognize a limited forage right implicit in a right-of-way for the maintenance and enjoyment of a vested water right?
We answer both questions in the negative.
BACKGROUND
{2} The Walkers own a forty-acre cattle ranch in southwestern New Mexico.
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Walker v. United States,
{3} In April 1996, the Forest Service conducted inspeсtions of the allotments in response to complaints of sick and dying cattle. Id. Based on these inspections, the Forest Service determined that drought conditions and overgrazing had “decimated” the grass and pasture on the allotments. Id. The Forest Service then instructed the Walkers to remove cattle incrementally from the allotments to encourage recovery of the pastures. Id. at 58-59. After cooperating initially, the Walkers began disputing the Forest Service’s authority over the allotments and refused to remove their cattle. Id. at 59-60.
{4} In October and November 1996, the Forest Service canceled both of the Walkers’ grazing permits. Id. at 60. The Walkers continued to graze, asserting that they owned the surface rights on the allotments and did not need a permit to graze. Id. at 59-60. In May 1997, the United States brought a trespass action against the Walkers. Walker II,
{5} The Walkers subsequently filed a complaint in the United States Court of Federal Claims (Court of Claims), arguing that the United States had violated the Just Compensation Clause of the Fifth Amendment to the
{6} In examining the Walkers’ takings claim, the Court of Claims concluded that New Mexico state law determines the nature of any alleged property interests taken by the federal government. Walker II,
DISCUSSION
I. Does the Law of the State of New Mexico Recognize a Limited Forage Right for Livestock Implicit in a Vested Water Right Historically Used for Stock Watering?
{7} As an initial matter, we note that we do not decide whether the Walkers actually have a valid water right, or whether they are entitled to compensation for any alleged taking of such a water right. That matter is not before us, and for the purpose of deciding the certified questions, we assume, without deciding, that the Walkers do have a valid water right as they claim. 2 As stated earlier, it is also clear that the Walkers do not have any property rights under federal law to the surface estate of the allotments.
{8} The question we must answer is whether the Walkers have a property right cognizable under state law as incident to that water right to use the surface estate of the allotments for forage. To make this claim, the Walkers trace a connection between their water right and an alleged property right in the surface estate. Specifically, the Walkers assert that their vested water right, historically used to water cattle, entitled their predecessors in interest and now entitles them, to the implicit use of the surrounding land as forage for that livestock.
{9} The Walkers’ argument is two-fold. First, they assert that their right to forage when utilizing a water right was established under the customary practice of Spain, Mexico, and the New Mexico Territory, which rights were then confirmed under the Mining Act of 1866. Second, the Walkers argue that the laws of New Mexico also recognize a
{10} The Walkers’ state law argument can be broken down into three parts: (1) the state law requirement that a water right must be put to beneficial use to avoid abandonment; (2) a specific state statute of ancient origin,
{11} In arguing for a property right to forage, the Walkers focus on the interplay of the beneficial use requirement with
Any person, company or corporation that may appropriate and stock a range upon the public domain of the United States, or otherwise, with cattle shall be deemed to be in possession thereof: provided, that such person, company or corporation shall lawfully possess or occupy, or be the lawful owner or possessor of sufficient living, permanent water upon such range for the proper maintenance of such cattle.
The Walkers’ argument can be summarized as follows: (1) to obtain and maintain a water right in New Mexico, a person must apply water to beneficial use, and the amount of the water right will be defined by the amount placed to beneficial use, see
{12} Focusing on this link between water and cattle, the Walkers argue that by rescinding their right to graze on the allotments, the Forest Service has deprived them of their right to make beneficial use of their water. 3 It is the purported right to graze (forage) of which the Walkers have allegedly been deprived and for which they seek compensation. After drawing this connection between water and use of the surrounding land, the Walkers draw further support for their claim from certain phrases pulled from precedent of this Court and our Court of Appeals which will be discussed in detail further in this opinion.
{13} One court has framed the question as follows: “whether [the] alleged grazing interest is a stick in the bundle of rights,” under state water law, that the Walkers have acquired with their water rights on the allotments. Colvin Cattle Co., Inc. v. United States,
A. Federal Case Law
{14} We are not the first court to entertain a claim of a right of forage incident to an existing water right. Federal courts have rejected similar claims based on relevant federal law as well as claims arising from analogous state law. One federal case, Diamond Bar Cattle Co. v. United States,
{15} In Diamond Bar, the Tenth Circuit Court of Appeals examined whether New Mexiсo law bestows “a private property right
{16} Before applying New Mexico law, the Tenth Circuit addressed federal regulation of federal public lands. Id. at 1211-12. The court noted that “Congress’ power under the Property Clause to regulate the public lands [i]s ‘without limitations.’ ” Id. at 1211 (quoting United States v. City & County of San Francisco,
{17} To ascertain what rights, if any, were “appropriated” by state law during the time of the open range, the Tenth Circuit turned to New Mexico law. Id. at 1213-14. The court first looked at
{18} The Walkers, and the Certification Order from the Federal Court of Claims, also refer to another federal case, Hage v. United
{19} For two reasons, Hage I does not support the Walkers’ assertion that their New Mexico water right encompasses a right to forage. First, the holding in Hage I was dependent on Nevada law, not New Mexico law. See Hage II,
B. New Mexico State Law
{20} As previously noted, the Walkers’ state law argument is premised on three overlapping legal areas: the beneficial use requirement, the language of
1. Foundational Principles and Historical Development of New Mexico Water Law
{21} The prior appropriation doctrine governs water law in New Mexico. See
{22} Under the doctrine of prior appropriation, water rights are both established and exercised by beneficial use, which forms “the basis, the measure and the limit of the right to use of the water.”
{23} The sole exception to the general rule that water rights are separate and distinct from the land is water used for irrigation. See KRM,
{24} The prior appropriation tradition, as it exists in New Mexico today, can be traced to the convergence of practices followed in northern Mexico prior to the cession in 1848 with practices developed in connection with Anglo western settlement. See United States v. Rio Grande Dam & Irrigation Co.,
{25} Early Western settlers, such as those in the gold mining camps of Cаlifornia and the early irrigation settlements in Colorado, found the riparian doctrine unworkable in the arid West because they often had to divert water from its source in order to use it beneficially because the land associated with the use of the water did not itself contain a water source. See A. Dan Tarlock, The Future of Prior Appropriation in the New West, 41 Nat. Resources J. 769, 770 (2001); Clark, supra, at 37 — 40. Under the traditional riparian doctrine, the new Western settlers would have had to show that their reasonable use did not interfere with those downstream. See Clark, supra, at 37 (noting that under the riparian doctrine, the reasonable use of a water right must not significantly interfere with downstream riparian appropriators). This riparian doctrine made sense in the eastern states where larger sources of water exist, and, therefore, not as many people had to tap into a single source resulting in less effect on downstream users. See Norman K. Johnson & Charles T. Dumars, A Survey of the Evolution of Western Water Law in Response to Changing Economic and Public Interest Demands, 29 Nat. Resources J. 347, 348-49 (1989). In the western states where populations were limited to fewer and smaller water sources, most uses somehow affected downstream users. See id.
{26} As indicated by its historical evolution in the West, a primary feature of the prior
{27} Water rights are therefore not tied to a particular location or even a particular source. See
{28} This mobility of water rights, generally not appurtenant to any specific land, informs our analysis of the Walkers’ argument in this case. As we shall see, the Walkers would have this Court undermine years of established law by declaring such a link, or an appurtenance, between land and water in the non-irrigation context.
2.
{29} The Walkers draw on New Mexico statutory law in support of their assertion that the law of New Mexico “tied the appropriation of water to the appropriation of range for the beneficial use of raising livestock and ‘possession’ of the range was directly tied to a vested water right.” As noted previously, this argument is based on
Any person, company or corporation that may appropriate and stock a range upon the public domain of the United States, or otherwise, with cattle shall be deemed to be in possession thereof: provided, that such person, company or corporation shall lawfully possess or occupy, or be the lawful owner or possessor of sufficient living, permanent water upon such range for the proper maintenance of such cattle.
(Emphasis added.) The Walkers further argue that
{30} As correctly observed by the Tenth Circuit in Diamond Bar, this Court has already confronted the nature of the possessory interest discussed in
{31} In Yates, this Court expanded on Hill, holding that under the predecessor to
{32} In connection with
{33} First, the Walkers have not been forced into non-use, because as discussed previously, all water rights, even if appurtenant to a certain piece of land, can be severed from that land and applied to another use at a different location. See
{34} Second, the requirement that water must be put to beneficial use does not give rise to an interminable right to continue that same beneficial use. See McNew,
3. New Mexico Case Law-The McNew Case and Subsequent Developments
{35} Along with
{36} The Walkers also claim that McNew “analogizes a stockwater [sic] right to an irrigation right,” and thus supports a finding that an interest in land is incident to a water right. In other words, since irrigation water rights become appurtenant to the land on which they are used, stock watering rights, which are also tied to the land through grazing, imply a grazing right on the land surrounding the source of that water. The Walkers point to the following statement from McNew:
Since water for stock-raising, as well as for irrigation, may become incident to the beneficial use of land, the cases cited are not distinguishable in that respect. The water right is considered incident or appurtenant to the land irrigated, because that is the use which it is applied and for which appropriated. For the same reason, it should be deemed incident to the land on which W.H. McNew’s cattle grazed.
{37} Upon careful analysis of the McNew opinion, we conclude that the Walkers have misread its holding as well as its place in New Mexico jurisprudence. McNew addressed whether a water right is appurtenant to a possessory interest in land.
{38} While our discussion of McNew could end here, we think this distant opinion deserves further explanation, especially in light of the specific passages the Walkers selectively draw upon to support their argument. The facts of McNew рrovide important context and are historically interesting, being specific to the time of the “open range” when the public domain was utilized by settlers seeking to make a living in the arid conditions of the West. The McNews raised cattle on the public range, but held no title to the land. McNew,
{39} Whatever the merits of an oral conveyance may have been in 1928, however, New Mexico water law has since evolved and made this inquiry moot. Since McNew was decided, our courts have recognized water rights as real property interests to which all the rules of real property apply, including the requirement of the statute of frauds that all such conveyances be in writing. See Posey v. Dove,
{40} Therefore, all of McNew’s language about water being “appurtenant” to рossessory estates in land, utilized to avoid the statute of frauds, seems out of time, would not be viewed the same today, and serves no continuing purpose for the law. As previously discussed, the law of New Mexico is clear that a water right is separate from any land right and not appurtenant, except in the irrigation context. To find any sort of interest in land, one must look to the land, not to a water right upon that land. To the extent McNew appears inconsistent with these principles, it has no contemporary legal effect and should no longer be cited for that purpose.
{41} Drawing on this same language from McNew, a later Court of Appeals opinion cited McNew, indicating in dicta that water used for certain domestic purposes, “including watering livestock,’’ can be incident to land “where the right to continue to use the water on the land is indispensable to the enjoyment of the land.” KRM, 1996—NMCA-103, ¶ 7,
C. Customary Practice
{43} Finally, the Walkers and Amici argue that New Mexico territorial customs and traditions expand a vested stock watering right to include a right to forage. Recounting historical practice, the Walkers observe that foraging by livestock has traditionally occurred adjacent to stock watering facilities. Duе to the dry conditions present across much of New Mexico, access to water is essential to maintaining grazing livestock. As a result, even though rangeland historically was open to all who could utilize it, those with access to water made greatest use of the range because without water, livestock could not survive. The Walkers emphasize that “he who controlled the water controlled the range.”
{44} While “control of the range” may have been the practical result of securing the resources necessary to maintain livestock over a particular area, that control does not lead to the conclusion that a stock watering right includes the right to other resources associated with stock watering. It is true that in order to be preserved by the Mining Act of 1866, an appurtenant forage right must have been identified and established by settlers. However, the United States correctly observes that none of the sources cited by the Walkers, including the law and customs of Spain, Mexico, and the New Mexico Territory as well as numerous historical accounts, maintain that a stock watering right includes an appurtenant grazing right. This “control of the range” was never a legally established possessory interest in the range, particularly vis-avis the rights of the federal government. See Clark, supra, at 48 (noting that although ownership of water “frequently carried with it undisturbed use of ... part of the public domain,” such use was only the result of “judicious bending of the law coupled with a tolerant attitude on the part of the officials charged with its administration”); id. at 37 (noting that early Western “[m]iners were simply squatters on the public domain, with no way of asserting legal ownership”); Maurice Frink, et al., When Grass Was King: Contributions to the Western Range Cattle Industry Study 384 (1956) (stating that ownership of water would give the owner “sufficient to control the backland, because the grass was useless without water,” but that doing so was not done with the “formality of law” and could lead to charges). The self-evident fact that grazing will occur in areas adjacent to stock watering facilities does not translate into a legally enforceable right to graze by virtue of a stock watering right. That right to graze must come from an independent source of authority related to the land.
{45} The Walkers seek to establish a possessory interest that those utilizing the public domain for grazing have always sought — a surface interest in government land. See Debra L. Donahue, Western Grazing: The Capture of Grass, Ground, and Government, 35 Envtl. L. 721, 738 (2005) (“Before long, however, [grazing] operators sought land of their own and/or secure rights to government lands on which they could produce livestock”); id. at 740 (noting that all stock owners sought to “establish ‘range rights’ to lands they did not own” (quoted authority omitted)). However, the law regarding the public domain has always been clear that while Western ranchers can lawfully gain access to and make use of public lands, such lands are not theirs for the taking. It was only through legislative action that, first, homesteaders using the land for irrigation, then ranchers under certain limited conditions, could legally take some of the public domain for private ownership. See Homestead Act of 1862, ch. 561, 26 Stat. 1097 (previously codified at
{46} In addition to the fact that custom does not support the Walkers’ claim, we recently held that customary practice is irrelevant when inconsistent with New Mexico law. See State ex rel. Martinez v. City of Las Vegas,
{47} We, therefore, hold that neither the laws of New Mexico nor customary practice support the Walkers’ claim to an implicit “possessory” right to graze on the public domain that attaches to their water right.
II. Does the Law of the State of New Mexico Recognize a Limited Forage Right Implicit in a Right-Of-Way for the Maintenance and Enjoyment of a Vested Water Right?
{48} Similar to the argument that a forage right is implicit in a water right under New Mexico law, thе Walkers also assert that a forage right is implicit in a right-of-way developed for the enjoyment of that water right.
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In other words, the Walkers claim that a right to forage is within the scope of a right-of-way consistent with the Mining Act and state law. The Mining Act recognizes a property right in public lands for “the right of way for the construction of ditches and canals” to carry water.
{49} In New Mexico, the scope of an easement, or right-of-way, is narrow and is measured by the “nature and purpose of the easement.” Olson v. H & B Props., Inc.,
{50} The language in
{51} There are, however, two statutes in New Mexico that do address similar types of rights-of-way. The first,
{52}
{53} We, therefore, hold that the laws of New Mexico do not support the Walkers’ claim to a forage right on federal lands implicit in their right-of-way for the maintenance and enjoyment of a vested water right.
CONCLUSION
{54} Having determined that the ease law and statutes of this State, as well as eustomary practice, do not support holding that a right to forage is within the scope of a water right or right-of-way for enjoyment of a water right, we answer both questions certified to us in the negative.
{55} IT IS SO ORDERED.
Notes
. Having no Record in this case, the facts are taken from the underlying federal case of Walker v. United States,
. There is a serious dispute whether the Walkers have any valid water rights because the water on the allotments is part of the Mimbres River Stream System and the Mimbres Underground Water Basin, both of which have been fully and finally adjudicated by the New Mexico courts. See Mimbres Valley Irrigation Co. v. Salopek, D-619-CV-66006326 (6th Jud.D.Ct. Jan. 14, 1993). According to the United States, all of the water on the allotments has been adjudicated to the Forest Service, not the Walkers or their predecessors in interest. While this is an important issue, the Court of Claims has made it clear that our answers to these certified questions may have jurisdictional implications, and thus it is important for us to submit our answers before the federal court takes on these other issues. Walker v. United States,
. Stock watering is a beneficial use under New Mexico law. McNew,
. Though the Diamond Bar plaintiffs sought a different remedy than the Walkers, namely continued possession of the range as opposed to compensation, the nature of the property interest at issue in both cases is the same. See Colvin Cattle Co. v. United States,
. The Tenth Circuit also denied Diamond Bar’s claim to an implied forage right under the federal Mining Act of 1866, similar to a claim made by the Walkers in federal court. Diamond Bar Cattle Co.,
. Again, the United States disputes whether the Walkers have actually established a valid right-of-way on the allotment. Because the Court of Claims made clear that both certified questions needed to be answered, we assume there is a valid right-of-way for our review.
. Moreover, the cases cited by the Walkers and their Amici do not lend support to their argument. In Jastro v. Francis, this Court held that a private landowner could not keep another from driving his stock across the privately held land to public domain through use of a right-of-way, and that along the way the stock would necessarily pass over and consume "grass from some of the land of the private owner.”