Anthony Water & Sanitation District v. Turney

2002 NMCA 095, 54 P.3d 87, 132 N.M. 683
CourtNew Mexico Court of Appeals
DecidedJune 13, 2002
Docket22,401
StatusPublished
Cited by11 cases

This text of 2002 NMCA 095 (Anthony Water & Sanitation District v. Turney) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anthony Water & Sanitation District v. Turney, 2002 NMCA 095, 54 P.3d 87, 132 N.M. 683 (N.M. Ct. App. 2002).

Opinion

OPINION

BUSTAMANTE, Judge.

{1} Anthony Water & Sanitation District (AWSD) appeals the district court’s dismissal of its appeal from a decision of the New Mexico State Engineer (State Engineer). The district court dismissed the appeal, finding that it lacked jurisdiction because AWSD failed to perfect its appeal pursuant to NMSA 1978, § 72-7-1(0 (1971). We affirm.

{2} AWSD makes two primary arguments: (1) Rule 1-074 NMRA 2002 rather than the statutory provisions, now controls appeals from decisions of the State Engineer, and (2) even if the statute controls, it does not require that all four instances of publication occur within the thirty-day limit for publication. We decline to address the first argument because it was not preserved below, though we harbor doubt about its validity. We disagree with AWSD’s position as to the second argument.

{3} Issues regarding the procedure to effectively appeal decisions of the State Engineer have appeared regularly on appellate court dockets over the last twenty-one years. Our Supreme Court and this Court have repeatedly held that the State Engineer and all other parties must be served a notice of appeal within thirty days after receipt of the final decision of the State Engineer. We have also repeatedly held that the district court does not gain jurisdiction over such appeals unless all parties are served within the thirty-day time frame. Section 72-7-1(B); In re Application of Angel Fire Corp., 96 N.M. 651, 652-53, 634 P.2d 202, 203-04 (1981); Derringer v. Turney, 2001-NMCA-075, ¶ 5, 131 N.M. 40, 33 P.3d 40; El Dorado Utils., Inc. v. Galisteo Domestic Water Users Ass’n, 120 N.M. 165, 168, 899 P.2d 608, 611 (Ct.App.1995); In re Application of Metro. Invs., Inc., 110 N.M. 436, 440, 796 P.2d 1132, 1136 (Ct.App.1990); In re Application No. 04.36-A Into 3811, 101 N.M. 579, 581, 686 P.2d 269, 271 (Ct.App.1984).

{4} Section 72-7-1(B) reads:

Appeals to the district court shall be taken by serving a notice of appeal upon the state engineer and all parties interested within thirty days after receipt by certified mail of notice of the decision, act or refusal to act. If an appeal is not timely taken, the action of the state engineer is conclusive.

Section 72-7-1(C) adds:

The notice of appeal may be served in the same manner as a summons in civil actions brought before the district court or by publication is [in] some newspaper printed in the county or water district in which the work or point of desired appropriation is situated, once a week for four consecutive weeks. The last publication shall be at least twenty days prior to the date the appeal may be heard. Proof of service of the notice of appeal shall be made in the same manner as in actions brought in the district court and shall be filed in the district court within thirty days after service is complete. At the time of filing the proof of service and upon payment by the appellant of the civil docket fee, the clerk of the district court shall docket the appeal.

Article XVI, § 5 of the New Mexico Constitution addresses appeals from decisions of the State Engineer and provides:

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.

{5} In pursuing its appeal, AWSD chose to attempt to serve notice of appeal pursuant to the publication provisions of Section 72-7-1(C). AWSD acknowledges that it failed to accomplish all four instances of publication within thirty days of its receipt of the State Engineer’s decision as described in Section 72-7-1(B). In fact, it succeeded in publishing notice only once prior to the statutory deadline for perfecting the appeal. Section 72-7-1(B), (C). As a result the district court specifically held that AWSD failed to perfect service by publication within the thirty days required by Section 72-7-1(B). See also In re Application of Metro. Invs., Inc., 110 N.M. at 441, 796 P.2d at 1137 (“[T]he provisions of Section 72-7-1 insofar as they relate to the method for perfecting an appeal from a decision of the state engineer, are mandatory. Hence the trial courts are without authority to extend a period of time fixed by statute.”).

{6} AWSD argues that Rule 1-074, which governs appeals to the district court from administrative agencies, controls the filing of the notice of appeal. Because Rule 1-074 requires only that the notice of appeal be filed in the district court within thirty days from the date of the administrative agency’s decision and because AWSD did just that, it contends its notice of appeal was timely filed and it does not matter that all parties were not served within thirty days. AWSD bases its argument on a novel reading of our Supreme Court’s decision in Maples v. State, 110 N.M. 34, 791 P.2d 788 (1990). In Maples, the Supreme Court held that on procedural matters such as time limitations for appeals, rules adopted by the Supreme Court governing limitations period for appeal to the judiciary from workers’ compensation decisions prevail over an inconsistent statute. Id. at 36, 791 P.2d at 790. AWSD argues that Section 72-7-1 is such an inconsistent statute and that AWSD was therefore required to comply only with the requirements set out in Rule 1-074 to perfect its appeal to the district court. But cf. In re Application of Metro. Invs., Inc., 110 N.M. at 440, 796 P.2d at 1136 (holding that Section 72-7-1 statutory provisions specifically dealing with the time limits for serving notice of appeal from decisions of the state engineer were jurisdictional).

{7} AWSD admits that it did not make this argument below and thus failed to preserve the argument for appeal. Rule 12-216(B) NMRA 2002. AWSD urges us to exercise our discretion under Rule 12-216(B)(1) to consider questions involving general public interest that have not been properly preserved. See also Pineda v. Grande Drilling Corp., 111 N.M. 536, 539, 807 P.2d 234, 237 (Ct.App.1991). AWSD asserts that addressing the issue would allow this Court to “clear up years of confusion regarding not just appeals from the state engineer, but from all administrative agencies in New Mexico.”

{8} We do not agree with AWSD’s arguments that this area of New Mexico law is unclear and should be addressed as a matter of discretion pursuant to Rule 12-216(B)(1). As noted above, New Mexico appellate decisions dealing with appeals of State Engineer decisions under Section 72-7-1 have strongly and consistently applied the statutory requirements. In our estimation, the Supreme Court’s discussion of In re Application of Angel Fire Corp.

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Bluebook (online)
2002 NMCA 095, 54 P.3d 87, 132 N.M. 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anthony-water-sanitation-district-v-turney-nmctapp-2002.