Waterfall Community Water Users Ass'n v. New Mexico State EngineerWaterfall Community Water Users Ass'n v. New Mexico State Engineer
- Reporters:
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- Before:
- Vanzi
OPINION
{1} Appellant, Waterfall Community Water Users Association (Waterfall), submitted an application for 320 acre-feet per year of
I. BACKGROUND
{2} On September 23,1999, Waterfall filed an application for unappropriated water with the Appellee, State Engineer. In that application, Waterfall sought appropriation of 320 acre-feet per year of surface water from Culberson Spring for use in its community water system. Waterfall’s application was protested by Mel Elkins (Protestant), an individual named as Appellee in this matter. Waterfall’s application was filed with the State Engineer’s hearing unit, the entity within the Office of the State Engineer responsible for conducting the hearing on Waterfall’s application.
{3} On May 31, 2001, prior to any evidentiary hearing, the Wаter Rights Division (WRD) of the State Engineer filed a motion to dismiss with the hearing unit of the State Engineer. The WRD requested dismissal of Waterfall’s hearing and denial of its application. In support of its motion, the WRD argued that Culberson Spring is a tributary to Cox Canyon, which is in turn a tributary to Rio Peñasco, which is in turn a tributary to the Pecos River. The WRD asserted that the State Engineer had previously found, in an unrelated case, that there are no unappropriated waters available in the Pecos River stream system. Accordingly, the WRD asserted that Waterfall’s request for appropriations from Culberson Spring must be denied. To conclude otherwise would result in permitting the appropriation of water from a water system that is fully appropriated.
{4} In response, Waterfall disputed the WRD’s claim that there was no unappropriаted water in the Pecos River stream system. Additionally, Waterfall claimed that it had a “natural right” pursuant to
{5} On August 8, 2001, the State Engineer dismissed Waterfall’s hearing and denied its application. The State Engineer found, concurring with the WRD, that the waters of Culberson Spring are tributary to the Pecos River, the Pecos River and its tributaries are fully appropriated, and thus there are no unappropriated waters available in the Pecos River stream system. Based on these facts, the State Engineer concluded that granting Waterfall’s application would impair existing rights to water in the Pecos River stream system, would bе detrimental to the public welfare, and would be contrary to the conservation of water within New Mexico.
{6} Pursuant to
{7} In his motion, Protestant asserted that summary judgment was warranted because, as the State Engineer found, Waterfall cannot appropriate waters from Culberson
{8} On May 7, 2007, Waterfall submitted its response to Protestant’s motion for summary judgment. At the outset, Waterfall agreed with the facts as set forth in Protestant’s motion and further conceded that the waters of the Pecos River stream system could be found to be fully appropriated. In spite of these concessions, however, Waterfall claimed that because “virtually all” the surface water it sought to appropriate from Culberson Spring would be returned to the Pecos River stream system, an issue of material fact existed with regard to whether there is unappropriated water in the Pecos River stream system.
{9} Waterfall also claimed that
{10} The district court granted the motion for summary judgment on August 31, 2007, dismissing Waterfall’s appeal. The district court found that there is no water available for appropriation in the Pecos River stream system, that Culberson Spring is a tributary and part of this stream system, and that the provisions of
II. DISCUSSION
A. Standard of Review
{11} “An appeal from the grant of a motion for summary judgment presents a question of law and is reviewed de novo.” Montgomery v. Lomоs Altos, Inc.,
B. Culberson Spring is Fully Appropriated
{12} We first address the State Engineer’s assertion that this matter is easily resolved given the undisputed fact that Waterfall has
{13} Notwithstanding that Waterfall has agreed that there could be a finding оf no unappropriated water in the Pecos River stream system, it nevertheless attempts to circumvent this statutory roadblock to its application by asserting a “natural right” to the water in Culberson Spring under
{14} Waterfall agrees that there could be a finding of no unappropriated water in the Pecos River stream system. It also concedes that it may exercise its alleged “natural right” to the wаters specified in its application under
{15} In attempting to elucidate the argument made by Waterfall, the State Engineer describes Waterfall’s request for unappropriated water as seeking a “super status water use.” We agree that Waterfall appears to be asserting a superseding right to a reasonable share of water from Culbеrson Spring, irrespective of whether Culberson Spring is fully appropriated. This conclusion — that Waterfall is asserting a superseding right to water — is the only way to make sense of Waterfall’s assertion that “as persons specifically identified in [
C. Interpretation of
{16} We thus address Waterfall’s argument that the natural right created by
{17} The starting point in оur efforts to resolve the questions raised by Waterfall’s argument is the language of the statute in question. In interpreting statutes, we seek to give effect to the Legislature’s intent, and in determining intent we look to the language used and consider the statute’s history and background. Key v. Chrysler Motors Corp.,
To the end that the waters of the several stream systems of the state may be conserved and utilized so as to prеvent erosion, waste and damage caused by torrential floods, and in order that the benefits of the use of such waters may be distributed among the inhabitants and landowners of the country along said streams as equitably as possible without interfering with vested rights, the natural right of the people living in the upper valleys of the several stream systems to impound and utilize a reasonable share of the waters which are precipitated upon and have their source in such valleys and superadjacent mountains,is hereby recognized, the exercise of such right, however, to be subject to the provisions of this article.
We first observe that this statute was promulgated in 1909, and the language of the present statute remains virtually unchanged since its promulgation. This fact highlights the novelty of Waterfall’s argument — we are aware of no other case since 1909 in which an applicant asserted a natural right to fully appropriated waters under
{18} The parties offer competing interpretations of
{19} First, Waterfall contends that the repeated use of the word “and” in
{20} The State Engineer suggests that
The intended effect ofSection 72-5-29 appears to be to smooth out the water supply curve by allowing wаter to be impounded during periods of excess supply, which otherwise could not be placed to beneficial use. Doing so [] promotes watershed health and prevents erosion and property damage by allowing impoundment and use of excessive or torrential flows under certain specific circumstances. [However, t]he State Engineer may nevertheless grant such an apрlication only if there is unappropriated water to appropriate ... and such an appropriation would not deprive prior appropriators of their water____ Thus, the Legislature clearly did not remove impoundment and utilization of flood waters from the general scheme for surface water appropriation, to create some sort of super status water use.
Given the complex nature of the statutory regime governing water appropriation in this state, relying on the expertise of the State Engineer to decipher how Section 72-5-29— a statute that has garnered little attention in one hundred years — fits into that scheme is prudent. Second, the State Engineer’s interpretation of
{21}
{22} Having arrived at the foregoing conclusions, we turn to the questions posed by Waterfall’s argument that it possesses a superseding “natural right” to the waters of Culberson Spring under
D. Alternative Grounds for Summary Judgment
{23} Moreover, even if we were to accept Waterfall’s interpretation of
III. CONCLUSION
{24} Accordingly, we hold that summary judgment was proper as a matter of law and that Waterfall was not entitled to the appropriation specified in its application, nor was it entitled to those waters under
{25} IT IS SO ORDERED.
Notes
. Throughout the record, the Spring has variously been referred to as "Culberson Spring” or "Culbertson Spring.” For consistency, we refer to it throughout this opinion as "Culberson Spring.”