New Mexico Ex Rel. State Engineer v. Trujillo

813 F.3d 1308, 2016 U.S. App. LEXIS 2880, 2016 WL 683831
CourtCourt of Appeals for the Tenth Circuit
DecidedFebruary 19, 2016
Docket15-2047
StatusPublished
Cited by37 cases

This text of 813 F.3d 1308 (New Mexico Ex Rel. State Engineer v. Trujillo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Mexico Ex Rel. State Engineer v. Trujillo, 813 F.3d 1308, 2016 U.S. App. LEXIS 2880, 2016 WL 683831 (10th Cir. 2016).

Opinion

MATHESON, Circuit Judge.

This appeal arises out of a long-running general stream adjudication, a lawsuit that determines parties’ rights to use a particular water source. The water source here is the Nambé-Pojoaque-Tesuque Basin (“Basin”), a stream system emanating from the Sangre de Cristo Mountains in Santa Fe County, New Mexico.

The State of New Mexico (“State”) is currently engaged in individual adjudications with parties who hold permits to divert the Basin’s underground water through the use of domestic water wells. In an individual adjudication, the State and the permit holder negotiate the latter’s water rights and, if necessary, litigate any contested issues before a special master. An individual adjudication aims to determine the priority date of the water rights, source of water, point of diversion, place of *1313 use, amount limitations, and any other restrictions on use.

Elisa Trujillo holds a domestic well permit that allows her to divert the Basin’s underground water. During her individual adjudication, she and the State disputed her water rights. In 2010, the special master granted summary judgment in favor of the State. In 2015, the district court entered an order (“2015 order”) that adjudicated Ms. Trujillo’s water rights based on the special master’s 2010 summary judgment order.

Ms. Trujillo identified only the 2015 order in her notice of appeal, which is an interlocutory order because the district court has not entered a final decision in the general stream adjudication. She presents no developed argument challenging the special master’s summary judgment order that served as a basis for the 2015 order. Instead, she spends much of her brief challenging two orders denying her motions to quash a 1983 injunction that placed limits on the State’s issuance of domestic well permits.

Exercising jurisdiction to review the 2015 order under 28 U.S.C. § 1292(a)(1), we affirm.

I. BACKGROUND

A. History of the General Stream Adjudication

This general stream adjudication began in 1966 when the State sued the United States, Pueblo de Nambé, Pueblo de Poj-oaque, Pueblo de San Ildefonso, and Pueblo de Tesuque (collectively “Pueblos”), and approximately 1,000 individuals living in the Basin. The lawsuit, styled New Mexico ex rel. State Engineer v. Aamodt, seeks to establish the water rights in the Basin by determining:

a. The water rights adjudged each party-
b. The source, priority, amount, purpose, periods, and place of use of each [water] right.
c. The specific tracts of land to which the water right for irrigation is appurtenant.
d. Such other matters as may be necessary to define a particular right and its priority.

N.M. Aplee. Suppl. App. at 9.

Since the beginning of the adjudication, approximately 3,000 individuals who claim water rights in the Basin have been named as defendants. Although it was initially a defendant, “[t]he United States, on its own behalf and on behalf of the Pueblos, intervened to remove any immunity problem and was aligned as plaintiff.” New Mexico ex rel. State Eng’r v. Aamodt, 537 F.2d 1102, 1105 (10th Cir.1976). The Pueblos later retained private counsel to represent them. Id. at 1107.

In 1983, the district court entered an order enjoining the State from issuing domestic well permits unless the permits limited the use of underground water to household purposes only. In 1985, Ms. Trujillo’s predecessor-in-interest received a domestic well permit. The permit limited underground water use in accordance with the 1983 injunction (household purposes only and no irrigation) and allowed a maximum use of 3.0 acre-feet per year (“AFY”). 1 The parties and the district court refer to the permits issued after the 1983 injunction as the post-1982 permits.

In 1994, the district court directed a special master to join all post-1982 permit holders as defendants and to determine their water rights based on the doctrine of *1314 beneficial use. The New Mexico Constitution states, “The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.” N.M. Const, art. XVI, § 2. It also provides that beneficial use is “the basis, the measure and the limit of the right to the use of water.” N.M. Const, art. XVI, § 3. To obtain water rights in New Mexico, a party must appropriate water for beneficial use, which entails “the use of such water as may be necessary for some useful and beneficial purpose in connection with the land from which it is taken.” State ex rel. Erickson v. McLean, 62 N.M. 264, 308 P.2d 983, 988 (1957).

In a separate 1994 order, the district court amended all post-1982 permits, which included Ms. Trujillo’s permit, to limit water use to either 3.0 AFY or “the historic beneficial use, whichever is less.” Pueblo Suppl. App. at 79.

In 2006, the district court entered an order requiring all post-1982 permit holders to show cause:

1. Why the .[permit holder’s] water .rights under a posN1982 domestic well permit should not be adjudicated in the quantity of 0.5 acre feet per annum; and
2. Why the [permit holder’s] water rights under a post-1982 well permit should not otherwise be adjudicated consistent with the terms of the domestic well permit.

N.M. Aplee. Suppl. App. at 10-11. In the motion seeking the foregoing order to show cause, the State proposed a limit of O.5 AFY based on the typical use of domestic well water statewide, even though evidence of domestic well water usage by post-1982 permit holders reflected a lower average of 0.3 AFY.

B. Ms. Trujillo’s Individual Adjudication

The State served Ms. Trujillo with a copy of the show-cause order along with a proposed order adjudicating her post-1982 underground water rights. The proposed order restricted underground water use to indoor purposes, prohibited irrigation, and limited the amount to 0.5 AFY based on historic beneficial use.

Ms. Trujillo objected to the prohibition on outdoor use and the proposed limitation of 0.5 AFY. She eventually litigated against the State before the special master to determine her water rights.

The State moved for summary judgment, contending Ms. Trujillo had failed to prove the right to use the Basin’s underground water for an amount and purpose other than those described in the proposed order. The State presented an affidavit from an expert witness stating the average per-household indoor use from a domestic well was 0.4 AFY. Ms.

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813 F.3d 1308, 2016 U.S. App. LEXIS 2880, 2016 WL 683831, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-mexico-ex-rel-state-engineer-v-trujillo-ca10-2016.