N.M. Const. art. XVI, § 5
In any appeal to the district court from the decision, act or refusal to act of any state executive officer or body in matters relating to water rights, the proceeding upon appeal shall be de novo as cases originally docketed in the district court unless otherwise provided by law. (As added November 7, 1967.)
The 1967 amendment of Article XVI, which was proposed by S.J.R. No. 7 (Laws 1967) and was adopted at a special election held on November 7, 1967, by a vote of 31,494 for and 19,571 against, added this section.
Compiler's notes. — An amendment to Article XVI, which would have added a new section similar to this one, was proposed by H.J.R. No. 29 (Laws 1965) and submitted to the people at a special election held on September 28, 1965. It was defeated by a vote of 23,718 for and 35,924 against.
Standard of review. — In appeals from the state engineer to the district court, the district court is limited to a de novo review of the issues decided by the state engineer. When the state engineer makes a summary determination that water is not available for appropriation, the district court is limited to review of the issue of whether water is available for appropriation, but when the state engineer determines that water is available for appropriation, the district court must consider each constituent issue of a water rights application. Lion’s Gate Water v. D’Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622.
Where the state engineer determined that no unappropriated water was available for the applicant and rejected the applicant’s application for a permit to appropriate water, the district court erred in determining that the district court had jurisdiction to hear all matters either presented to or which might have been presented to the state engineer. Lion’s Gate Water v. D’Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622.
Standard of review of decisions of the commissioners of acequias. — The standard of review in an appeal to the district court from a decision by the commissioners of an acequia pursuant to 73-2-21 NMSA 1978, which permits the district court to set aside, reverse or remand the decision if the district court determines that the commissioners acted fraudulently, arbitrarily or capriciously, or that the commissioners did not act in accordance with law, does not violate N.M. Const., art. XVI, § 5. Pena Blanca P'ship v. San Jose de Hernandez Cmty. Ditch, 2009-NMCA-016, 145 N.M. 555, 202 P.3d 814, cert. denied, 2009-NMCERT-001, 145 N.M. 655, 203 P.3d 870.
Original proceeding in district court unconstitutional. — Proviso added to 75-2-15, 1953 Comp. in 1967 (since deleted), stating that that section was to have no application to hearings relating to underground waters required to be held in district court, was unconstitutional as a violation of separation of powers doctrine of state constitution; statute was not validated by subsequent adoption of N.M. Const., art. XVI, § 1, since constitutional amendment concerned appeal to district court, whereas contemplated hearings were original proceedings in district court. Fellows v. Shultz, 1970-NMSC-071, 81 N.M. 496, 469 P.2d 141.
1967 amendment to 75-11-7, 1953 Comp. (since deleted), providing for district court review of state engineer's decision, was unconstitutional in that it violated separation of powers doctrine of state constitution; statute was not validated by subsequent adoption of N.M. Const., art. XVI, § 5, since that amendment specifically referred to "appeal" to district court, whereas the statute contemplated an original proceeding in district court without the requirement of a prior decision, act or refusal to act by state engineer. Fellows v. Shultz, 1970-NMSC-071, 81 N.M. 496, 469 P.2d 141.
Court should have recited substance of its judgment, rather than merely affirming findings and decision of state engineer. Fort Sumner Irrigation Dist. v. Carlsbad Irrigation Dist., 1974-NMSC-082, 87 N.M. 149, 530 P.2d 943.
Trial de novo afforded. — Where irrigation district appealed state engineer's findings and order approving transfer of certain water storage rights and at trial in district court evidence adduced at hearing before engineer was considered along with all additional relevant evidence desired by the parties, including witnesses, and no party was in any way foreclosed or limited in presentation of evidence it possessed and wished to present, the proceedings conformed to trial de novo mandated by this section, although court merely affirmed findings and order of state engineer. Fort Sumner Irrigation Dist. v. Carlsbad Irrigation Dist., 1974-NMSC-082, 87 N.M. 149, 530 P.2d 943.
Law reviews. — For article, "Constitutional Limitations on the Exercise of Judicial Functions by Administrative Agencies," see 7 Nat. Resources J. 599 (1967).
For article, "Water Rights Problems in the Upper Rio Grande Watershed and Adjoining Areas," see 11 Nat. Resources J. 48 (1971).
For article, "Congressional Quantification of Indian Reserved Water Rights: A Definite Solution or a Mirage?," see 20 Nat. Resources J. 17 (1980).
For comment, "Protection of the Means of Groundwater Diversion," see 20 Nat. Resources J. 625 (1980).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 78 Am. Jur. 2d Waters §§ 256, 258.
93 C.J.S. Waters § 204.