Herrington v. State Ex Rel. Office of the State Engineer

2004 NMCA 062, 92 P.3d 31, 135 N.M. 585
CourtNew Mexico Court of Appeals
DecidedMay 17, 2004
Docket23,871
StatusPublished
Cited by2 cases

This text of 2004 NMCA 062 (Herrington v. State Ex Rel. Office of the State Engineer) 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
Herrington v. State Ex Rel. Office of the State Engineer, 2004 NMCA 062, 92 P.3d 31, 135 N.M. 585 (N.M. Ct. App. 2004).

Opinion

OPINION

PICKARD, Judge.

{1} The Herringtons (Applicants) applied to change the point of diversion for their surface water right from an above-ground location to a well. The Office of the State Engineer denied their application, and Applicants appealed to the district court. The district court reviewed the application de novo and denied it, and Applicants appeal. Applicants argue that the district court (1) misapplied the case law governing when such transfers are permissible, (2) erred in failing to find that they had a right to change their point of diversion to a ground water well inherent to their water right, (3) incorrectly determined whether the proposed well would impair existing water rights, (4) erred in failing to grant a permit for a more shallow well, (5) ignored and contradicted binding provisions of an earlier adjudication, (6) did not have sufficient evidence to support the judgment, and (7) improperly considered expert testimony. We hold that the district court correctly applied the law and was not required to address impairment or grant a permit for a well with different specifications. We also hold that provisions of the earlier adjudication did not contradict the trial court’s decision and that substantial evidence supported it. Accordingly, we affirm.

FACTS AND PROCEEDINGS

{2} Applicants own a right to divert 49.73 acre-feet of water per year from the Rio de Arenas, a tributary of the Mimbres River in southern New Mexico, based on the adjudicated right to take 2.7 acre-feet per year per acre on their 18.42 acres of land. Applicants’ historical point of diversion was the FrazierBateman Ditch.

{3} In 1982, Applicants filed an application to change their point of diversion from the Frazier-Bateman Ditch to a 100-foot-deep well, arguing that ground water pumping by up-stream junior appropriators had diminished the surface water available at their existing point of diversion. The proposed well was downstream from the point of diversion on the Frazier-Bateman ditch. The Office of the State Engineer denied the application in 1983. Applicants sought a hearing in front of a hearing examiner from the Office of the State Engineer, and the hearing examiner denied their application in 2001. Applicants appealed to the district court, as provided for by NMSA 1978, § 72-7-1 (1971). The district court denied the application, and Applicants appeal from this order. Additional facts appear below as they pertain to the decision.

DISCUSSION

ISSUE ONE: The district court correctly interpreted and applied the Templeton doctrine.

{4} Applicants argue that the district court incorrectly interpreted New Mexico law governing ground water wells that are used to compensate for a surface water shortage. We review the question of whether the district court properly interpreted the applicable law de novo. See Gallegos v. N.M. Bd. of Educ., 1997-NMCA-040, ¶ 11, 123 N.M. 362, 940 P.2d 468 (holding that this court is “not bound by the conclusions of law reached by the trial court, and the applicable standard of review for such issues is de novo”).

{5} New Mexico law recognizes that an individual with a surface water right may change his or her point of diversion to a well that supplements surface flows at times of shortfall, as long as two conditions are met. Templeton v. Pecos Valley Artesian Conservancy Dist., 65 N.M. 59, 68, 332 P.2d 465, 471 (1958). First, the ground water to be pumped must be the source of the surface water. Id. Second, the change in point of diversion must not impair other existing water rights. Id. Surface water right owners may use this “Templeton doctrine” to acquire the full amount of their appropriation by tapping into ground water sources, even when the ground water basin has been closed to further new appropriation. Id. at 68-69, 332 P.2d at 471. In addition, the ground water well takes on the priority date of the surface water appropriation. See State ex rel. Martinez v. City of Roswell, 114 N.M. 581, 584-85, 844 P.2d 831, 834-35 (Ct.App. 1992) (hereinafter Roswell).

{6} In Templeton, the ground water at issue was part of the Roswell Shallow Water Basin, and it flowed through soils known as the “Valley Fill.” Templeton, 65 N.M. at 62, 332 P.2d at 466. At certain places and in times of flood, the Shallow Basin water level would rise to create an above-ground stream known as the Rio Felix. Id. The applicants in Templeton had surface water rights to the Rio Felix, but as ground water pumping in the area increased, the amount of water flowing to the surface to form the Rio Felix decreased. Id. at 62, 332 P.2d at 467. The applicants sought to tap into the Roswell Shallow Water Basin to obtain the full amount of then- appropriation. Id. at 61, 332 P.2d at 466. The Court permitted this because the applicants merely sought to “follow the source of then- original appropriation.” Id. at 68, 332 P.2d at 471.

{7} Our Supreme Court later clarified that ground water does not have to be the immediate source of surface water in order to meet the requirements of Templeton. In Langenegger v. Carlsbad Irrigation District, 82 N.M. 416, 417, 483 P.2d 297, 298 (1971), the applicants had a right to surface water from the Pecos River, and they proposed to tap the Roswell Artesian Basin to meet their shortfall. The Office of the State Engineer argued that because the Pecos River and the Roswell Artesian Basin were physically separated by the Roswell Shallow Water Basin, the Artesian Basin was not the immediate source of the surface water. Id. at 420-21, 483 P.2d at 301-02. However, evidence at trial had established that there was leakage from the Artesian Basin up to the Shallow Basin and that pumping from the Artesian Basin had diminished the supply of surface water. Id. at 418, 483 P.2d at 299. The Court held that because the Artesian Basin was a source of the Pecos -River at the location where the ground water well was proposed, the requirements of Templeton were satisfied. Id. at 421-22, 483 P.2d at 302-03.

{8} The Templeton source requirement was also refined in Kelley v. Carlsbad Irrigation District, 76 N.M. 466, 468, 415 P.2d 849, 850 (1966), which involved an applicant with a right to surface water from the Hondo River. The applicant sought to divert his water into the Hondo Reservón-, which he had not used previously. Id. at 469, 415 P.2d at 851. He then planned to drill a well to pump ground water from the Roswell Artesian Basin, arguing that the water from the Reservoir percolated into the Artesian Basin as a result of the Reservoir’s highly permeable floor. Id. The Court held that unlike the ground water in Templeton that came above ground to become surface water, this was surface water that had sunk below the ground to become ground water. Id. at 472, 415 P.2d at 853. Consequently, the Templeton doctrine did not apply because the Roswell Artesian Basin at this location was not a source of the surface water to which the applicant had a right. Id.

{9} Similarly, in Brantley v. Carlsbad Irrigation District, 92 N.M.

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Related

Herrington v. State Ex Rel. Office of the State Engineer
2006 NMSC 014 (New Mexico Supreme Court, 2006)
Town of Silver City v. Scartaccini
2006 NMCA 009 (New Mexico Court of Appeals, 2005)

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2004 NMCA 062, 92 P.3d 31, 135 N.M. 585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herrington-v-state-ex-rel-office-of-the-state-engineer-nmctapp-2004.