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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
2 STATE OF NEW MEXICO ex rel. 3 STATE ENGINEER,
4 Plaintiff-Appellee,
5 v. NOS. A-1-CA-33439 and 6 A-1-CA-33534 (Consolidated)
7 UNITED STATES OF AMERICA,
8 Defendant-Appellee,
9 v.
10 NAVAJO NATION,
11 Defendant-Intervenor-Appellee.
12 v.
13 B SQUARE RANCH, LLC; BOLACK MINERALS 14 COMPANY, A/K/A BOLACK MINERALS 15 COMPANY LIMITED PARTNERSHIP; ESTATE OF 16 TOM BOLACK; A/K/A THOMAS FELIX BOLACK, 17 DECEASED; BOLACK MINERALS FOUNDATION; 18 TOMMY BOLACK REVOCABLE TRUST; ESTATE 19 OF JUANITA VELASQUEZ, DECEASED; DAVID A. 20 PIERCE; MAXINE M. PIERCE; DAVID M. DRAKE; 21 and SHAWNA DRAKE, 1 Defendants-Appellants.
2 and
3 STATE OF NEW MEXICO ex rel. 4 STATE ENGINEER,
5 Plaintiff-Appellee,
6 v.
13 MCCARTY TRUST, STEPHEN ALBERT 14 MCCARTY, TRUSTEE; AND ESTATE OF 15 MARY MCCARTY, A/K/A MARY LOUISE 16 MCCARTY, DECEASED,
17 Defendants-Appellants.
18 APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY 19 Honorable James J. Wechsler
20 Arianne Singer, Special Assistant Attorney General 21 Santa Fe, NM
22 Utton & Kery, P.A.
2 1 John W. Utton, Special Assistant Attorney General 2 Santa Fe, NM
3 for Appellee State of New Mexico, New Mexico Office of the State Engineer
4 United States Department of Justice, Appellate Section 5 Environmental & Natural Resources Division 6 John C. Cruden, Assistant Attorney General 7 Andrew J. Guarino 8 Mark R. Haag 9 Washington, D.C.
10 for Appellee United States of America
11 Navajo Nation Department of Justice 12 Stanley M. Pollack 13 M. Kathryn Hoover, 14 Window Rock, AZ
15 for Appellee Navajo Nation
16 Tully Law Firm, P.A. 17 Richard T. C. Tully 18 Farmington, NM
19 for Appellants B Square Ranch; Bolack Minerals Company, a/k/a Bolack Minerals 20 Company Limited Partnership; Estate of Tom Bolack; a/k/a Thomas Felix Bolack, 21 Deceased; Bolack Minerals Foundation; Tommy Bolack Revocable Trust; Estate of 22 Juanita Velasquez, Deceased; David A. Pierce; Maxine M. Pierce; David M. Drake; 23 and Shawna Drake
24 Law Office of Priscilla A. Shannon 25 Priscilla A. Shannon 26 Farmington, NM
27 for Appellants McCarty Trust et al.; Stephen Albert McCarty, Trustee; and Estate of 28 Mary McCarty, a/k/a Mary Louise McCarty, Deceased
3 1 Public Service Company of New Mexico 2 Mikal M. Altomare 3 Albuquerque, NM
4 for Tucson Electric Power Company and Public Service Company of New Mexico
5 Ute Mountain Ute Tribe 6 Office of General Counsel 7 Leland Begay, Associate General Counsel 8 Peter Ortego 9 Lee Bergen 10 Towaoc, CO
11 Samuel L. Winder 12 Albuquerque, NM
13 for Ute Mountain Ute Tribe
14 Modrall, Sperling, Roehl, Harris & Sisk, P.A. 15 Maria O’Brien 16 Christina C. Sheehan 17 Zoë E. Lees 18 Albuquerque, NM
19 for BHP Billiton New Mexico Coal Inc. and Enterprise Field Services, LLC
20 Stein & Brockmann, P.A. 21 Jay F. Stein 22 James C. Brockmann 23 Santa Fe, NM
24 for Albuquerque Bernalillo County Water Utility Authority, City of Española, and 25 City of Gallup
26 Keleher & McLeod, P.A. 27 Cassandra R. Malone 28 Richard B. Cole 29 Albuquerque, NM
4 1 for Cities of Aztec and Bloomfield
2 Taylor & McCaleb, P.A. 3 Elizabeth Newlin Taylor 4 Jolene L. McCaleb 5 Corrales, NM
6 for San Juan Water Commission
7 Dumas Law Office, LLC 8 Jenny Dumas 9 Albuquerque, NM
10 for Jicarilla Apache Nation
11 Gary L. Horner 12 Farmington , NM
13 Pro Se
14 Victor R. Marshall & Associates, P.C. 15 Victor R. Marshall 16 Albuquerque, NM
17 for San Juan Agricultural Water Users, Hammond Conservancy District, Bloomfield 18 Irrigation District, Various Ditches and Various Members Thereof
19 C. Brad Lane Cates 20 Fairacres, NM
21 for Amici Paul Bandy, Steve Neville, and Carl Trujillo
5 1 MEMORANDUM OPINION
2 BLACK, Judge.
3 Factual and Procedural Background
4 {1} This opinion addresses two of four appeals from the order granting settlement
5 motion in the San Juan River General Stream Adjudication (the Settlement). Case
6 numbers A-1-CA-33439 and A-1-CA-33534 are hereby consolidated. The portion of
7 the opinion addressing arguments raised by the McCarty Trust Appellants follows our
8 discussion of the issues raised by the B Square Ranch Appellants. Following decades
9 of litigation, the approval of the Settlement in this case resolved the largest water
10 rights claim in New Mexico. A more exhaustive procedural history of the proceedings
11 in the district court is detailed in this Court’s opinion in Navajo Nation v. San Juan
12 Agricultural Water Users Ass’n, ___-NMCA-___, ¶¶ 1-5, ___ P.3d ___ (No. A-1-CA-
13 33535, ______, ___, 2018).
14 {2} As discussed in San Juan Agricultural Water Users Ass’n, negotiation of the
15 Settlement took more than a decade and involved myriad public hearings. Congress
16 then allowed further public input and formal testimony and approved the Settlement
17 by enacting the Omnibus Public Land Management Act of 2009, Northwestern New
6 1 Mexico Rural Water Projects Act (the Settlement Act), Pub. L. No. 111-11, § 10301,
2 123 Stat. 991 (2009). The Settlement Act made it a condition of the Settlement that
3 a New Mexico district court review the terms of the Settlement and enter a partial final
4 decree before December 31, 2013. See id. § 10701(e)(1)(A)(iii). Sitting by designation
5 in the San Juan County District Court, Judge James Wechsler established an inter se
6 proceeding to provide the congressionally mandated review.
7 {3} Following extensive discovery, briefing, and oral arguments, Judge Wechsler
8 applied his wide knowledge and experience in water law to the record and found the
9 settling parties had proved a prima facie case and that the non-settling parties had
10 failed to advance evidence to create issues of material fact. Judge Wechsler made
11 extensive and detailed findings with respect to every required element of the case. He
12 concluded that the Settlement was fair, adequate, reasonable, and consistent with the
13 public interest as well as all applicable laws. He recognized the objectors’ motions
14 were in the nature of “motions for summary judgment” but, given the nature of the
15 proceeding, did not feel it necessary to address the technical requirements of Rule
16 1-056 NMRA.
17 I. Appellants’ Brief Raises Over Fifty Issues But This Court Will Not 18 Consider Those for Which No Legal Authority or Evidence Are Cited
19 {4} While B Square Ranch lists fifty-three issues for review it fails to provide either
20 argument or authority for the vast majority of them. This violates well established
7 1 New Mexico precedent. See Bounds v. State ex rel. D’Antonio, 2013-NMSC-037, ¶
2 10 n.1, 306 P.3d 457; In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,
3 676 P.2d 1329. Appellant has thus waived any challenge to those determinations. See
4 Roselli v. Rio Communities Serv. Station, Inc., 1990-NMSC-018, ¶ 10, 109 N.M. 509,
5 787 P.2d 428; Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137 N.M.
6 339, 110 P.3d 1076. Since Appellant has chosen to incorporate by reference and adopt
7 the arguments of the other appeals,1 we will address such issues as necessary in our
8 other opinions. Utahns for Better Transp. v. United States Dep’t of Transp., 305 F.3d
9 1152, 1175 (10th Cir. 2002) (listing issues and incorporating by reference is not
10 “adequate briefing”).
11 II. Appellant Was Not Denied Substantive Due Process
12 {5} Appellant makes only a single challenge to the court’s findings under the
13 required appellate standard, arguing that the “Settlement Agreement awards
14 substantial[ly] more (not less) water rights than what the Navajo Nation could secure
15 at trial[.]” An appellate court reviews a district court’s decision to approve a
16 settlement decree only to determine if there was an abuse of discretion. See, e.g.,
17 Platte v. First Colony Life Ins. Co., 2008-NMSC-058, ¶ 7, 145 N.M. 77, 194 P.3d 108
1 18 Appellant lists issues B, C, D, E, F, G, H, I, L, M, O, P, Q, R, S, T, U, V, X, 19 AA, BB, EE, FF, GG, HH, II, JJ, KK, LL, MM, NN, OO, PP, QQ, RR, SS, XX, YY, 20 ZZ, and AAA, again emphasizing the unnecessary duplicity of these four appeals.
8 1 (2008); In re Norwest Bank of N.M., NA., 2003-NMCA-128, ¶ 22, 134 N.M. 516, 80
2 P.3d 98. In this case the underlying evidence is contrary to B Square’s position and
3 does not support the legal argument that B Square has been deprived of its water rights
4 in violation of the constitutional right to due process.
5 {6} To assert a due process claim, an appellant must establish both a deprivation of
6 a protected liberty or property interest and that the appellant was not afforded an
7 opportunity to be heard prior to the deprivation. Barreras v. N.M. Corr. Dep’t, 1992-
8 NMSC-059, ¶ 18, 114 N.M. 366, 838 P.2d 983. B Square premises its argument that
9 it lost water rights on the assertion that the district court failed to recognize “that the
10 Settling Party, the Navajo Nation . . . waived and relinquished its rights under the
11 ‘Winters Rights Doctrine’ as consideration for the building of Navajo Indian Irrigation
12 Project [(NIIP)].”2
13 {7} B Square Ranch asserts, without citation, that the Navajo Nation gave sworn
14 testimony to federal representatives and passed tribal resolutions consenting to
15 relinquishment of “its rights under the Winters Rights Doctrine for the water necessary
16 to irrigate the NIIP.” Appellant then extends this argument to assert that the Navajo
17 Nation’s actions combined with passage of the NIIP Act raise “genuine issues [of]
2 18 The only waiver supported by the record shows that the Navajo Nation did 19 agree to waive its 1848 water in return for the NIIP project (which the Federal 20 government has never completed).
9 1 material fact concerning the waiver or relinquishment of the Navajo Nation’s Winters
2 Rights[.]” As the district court correctly noted, “only Congress may waive Indian
3 property rights[,]” and “[t]here is no language in the 1962 NIIP Act that waives the
4 Navajo Nation’s rights.” See Order granting the settlement motion (citing Oneida
5 Indian Nation of N.Y. State v. Cty. of Oneida, N.Y., 414 U.S. 661, 667 (1974)); see
6 also Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370, 376 n.6
7 (1st Cir. 1975) (“The right to extinguish Indian title is an attribute of sovereignty
8 which no state, but only the United States, can exercise[.]”).
9 {8} B Square Ranch argues, again without any proof in the record, that Congress
10 relied on these Navajo Nation oral statements to pass the NIIP Act and, thus, Congress
11 affirmed the Navajo water waiver. Even assuming there might be a factual issue about
12 what Navajo officials may have said, that does not create any factual issue about what
13 Congress did because a congressional waiver of tribal rights must be clear and
14 unambiguous. United States v. Dion, 476 U.S. 734, 738 (1986); Menominee Tribe of
15 Indians v. United States, 391 U.S. 404, 412-13 (1968). B Square Ranch does not and
16 cannot point to any ambiguity or factual issue regarding the language of the NIIP Act.
17 The district court therefore properly concluded, “As a matter of law, the facts B
18 Square Ranch has presented do not create a waiver.”
10 1 {9} Even had the NIIP Act waived some or all of the Navajo Nation’s Winters
2 claims, B Square Ranch’s contention that the Settlement provides the Navajo Nation
3 more water than it could secure at trial nevertheless fails. B Square would still have
4 to prove the alleged misallocation of water resulted in B Square being deprived of its
5 rightful property. Section 2 of the NIIP Act, authorizes an average annual diversion
6 of up to 508,000 acre-feet. See NIIP Act, 43 U.S.C. § 615jj. Appellant B Square
7 agrees that under the Settlement the total NIIP diversions of water would only be
8 480,729 acre-feet. Moreover, the Navajo Nation did agree in consideration for the
9 NIIP project to waive its 1848 water priority, a substantial benefit to Appellants.3 The
10 Navajo Nation further agreed to share shortages with other San Juan users in times of
11 drought and to first use up to 12,000 acre-feet per year of stored water instead of
12 making river priority calls for the Fruitland-Cambridge and Hogback-Cudei irrigation
13 projects. In short, B Square has completely failed to prove its assertion that the district
14 court decision deprives it of property to which it is legally entitled and, if anything,
15 the record proves B Square benefitted immensely from the Settlement.
16 III. B Square Lacks Any Factual Basis to Argue a Procedural Due Process 17 Claim
3 17 For a more detailed discussion of the history of NIIP, see Judith E. Jacobsen, 18 The Navajo Irrigation Project & Quantification of Navajo Winters Rights, 32 Nat. 19 Resources J. 825, 825-32 (1992).
11 1 {10} Nor does this record support any basis for B Square’s conclusion that it was
2 deprived of a right to be heard prior to the district court’s approval of the Settlement.
3 B Square premises this argument on its claims that it was not provided sufficient time
4 to
5 examine the discovery that was provided by the Settling Parties; . . . 6 request additional discovery from the Settling Parties; . . . adequately 7 object, respond or answer the discovery requests of the Settling Parties; 8 . . . [and to] take over, schedule and attempt to complete the work that 9 was being performed by certain of the Non-Settling Parties who entered 10 into settlement agreements just before the March 1, 2013 discovery 11 deadline.
12 {11} An examination of the record in this case demonstrates the unreasonableness
13 of B Square’s position. Discovery was available to the non-settling parties at the time
14 the State and other settling parties made their initial disclosures on April 2, 2012.
15 From that time forward, B Square Ranch was able to review documents, make
16 discovery requests, and conduct depositions at any time. The district court’s original
17 scheduling order closed discovery on February 1, 2013, allowing all parties ten
18 months for discovery. On November 6, 2012, at the request of B Square Ranch along
19 with others, the district court extended the discovery deadline to March 1, 2013. B
20 Square totally failed to pursue adequate discovery and relied on other non-settling
21 parties like Conoco/Phillips and El Paso Natural Gas Company to pursue discovery.
12 1 These parties noticed several depositions and produced supplemental documents and
2 witness lists, but settled in February 2013.
3 {12} On February 25 and 26, 2013, just three days before the close of the extended
4 discovery period, counsel for B Square Ranch for the first time reviewed documents
5 made available at the United States Bureau of Indian Affairs office in Farmington,
6 New Mexico. On March 6, 2013, five days after the close of discovery, B Square
7 Ranch filed another request for an additional extension of 120 days for the discovery
8 deadline, to take depositions and perform certain additional limited discovery.
9 {13} On April 11, 2013, B Square Ranch requested yet another 90-day extension of
10 the discovery period. The district court denied this motion because the request failed
11 to cite any new circumstances that would warrant a further extension. Moreover, since
12 Congress had established December 31, 2013, as the deadline for judicial review of
13 the Settlement, never-ending discovery was not possible. Cf. In re E. I. Du Pont de
14 Nemours & Co., C-8 Pers. Injury Litig., 2016 WL 5884964 *7 (S.D. Ohio 2016)
15 (suggesting that discovery must have limits in even the most complex case).
16 {14} In total, discovery was open for over a year. The non-settling parties
17 collectively propounded scores of interrogatories and requests for production of
18 documents. In response, the settling parties disclosed thousands of documents,
19 prepared and produced numerous expert reports, and identified more than a score of
13 1 potential expert and lay witnesses. Despite the duration of discovery and the number
2 of lay and expert witnesses identified by the settling parties, the non-settling parties
3 deposed only one witness who was not then cited or called at the subsequent
4 proceedings.
5 {15} A due process claim based on the limitation of discovery must be measured on
6 the reasonableness of the limitation to the factual context. Archuleta v. Santa Fe
7 Police Dep’t ex rel. City of Santa Fe, 2005-NMSC-006, ¶ 32, 137 N.M. 161, 108 P.3d
8 1019. Extensive research has not found a single case sustaining a due process claim
9 on a similar record, and B Square has not cited one. Indeed those analogous appellate
10 cases this Court was able to find summarily rejected such arguments and felt it
11 unnecessary to even formally publish the opinion.4
12 {16} B Square also complains the district court only allowed five days following its
13 decision to present a final order. Again these facts fail to support a violation of due
14 process argument.
15 McCarty Argument
4 17 See Flowers v. Wray, 511 F. App’x 576, 580 (7th Cir. 2013); Rearick v. Pa. 18 State Univ., 416 F. App’x 223, 224-25 (3d Cir. 2011); Marks v. Cook, 347 F. App’x 19 915, 918 (4th Cir. 2009); Rosetsky v. Nat’l Bd. of Med. Exam’rs, 350 F. App’x 698, 20 702 (3d Cir. 2009); see also Boliaux v. Auto. Fin. Corp., 459 B.R. 292, 297 (N.D. Ill. 21 2011).
14 1 {17} The McCarty Trust, although it too refused to agree to a joint appeal, freely
2 admits that both it and its lawyer have “relied heavily on the expertise and research
3 of Appellants,” Gary L. Horner (Ct. App. No. A-1-CA-33437), Rick Tully (counsel
4 for B Square Ranch, Ct. App. No. A-1-CA-33439), and Victor Marshall (counsel for
5 San Juan Agricultural Water Users Association and various Acequias and ditches, Ct.
6 App. No. A-1-CA-33535). The arguments of the other appellants have all been
7 disposed of by this Court in this and the related opinions referenced by McCarty
8 Trust, and the Trust raises only one unique issue.
9 {18} McCarty Trust maintains that Gary Risely, who entered his appearance on
10 behalf of the La Plata Acequia Association, and the San Juan Development, was
11 thereby obligated to represent the individual members of those groups. This in spite
12 of the fact that Risely repeatedly told the district court, “I am not representing
13 individuals” and “would never presume to represent individuals who have not come
14 to retain me and given me a contract.” Based on the above erroneous factual premise,
15 McCarty Trust concludes that Risely acted unethically by accepting a fee under the
16 Acequia and Community Ditch Fund Act (the Act). NMSA 1978, §§ 73-2A-1 to -3
17 (1988, as amended through 1994). Moreover, concludes McCarty Trust, since Risely
18 eventually agreed to approve the Settlement on behalf of his clients, “Risely sold out
15 1 the best interests of his clients because he was being paid by the other side—the
2 [S]tate [E]ngineer.”
3 {19} Initially it must be noted that when an individual member of an association does
4 not have an individual contract with the association’s attorney, the individual is not
5 a client. Bachner v. Air Line Pilots Ass’n, 113 F.R.D. 644, 649 (D. Alaska 1987); In
6 re Baytown Nissan Inc., 451 S.W.3d 140, 146 (Tex. Ct. App. 2014). Secondly, this
7 would almost certainly lead to a conflict of interest as the rights of the association
8 would rarely be the rights and duties of each individual member.
9 {20} Moreover McCarty Trust’s argument misapprehends the purpose of the Act.
10 The Legislature enacted that Act “to provide financial assistance to acequias and
11 community ditch systems to develop hydrological studies, acquire technical and legal
12 research and other information and services necessary to conserve and protect water
13 for New Mexico’s future through the adjudication of water rights.” Section 73-2A-2.
14 It authorizes funding through the “acequia and community ditch fund” upon order of
15 the director of the New Mexico Department of Agriculture. Section 73-2A-3(A). “[A]
16 committee consisting of the director of the New Mexico department of agriculture, the
17 chairman of the interstate stream commission and a third person who will be elected
18 from within the New Mexico acequia commission[,]” allocates the annual funding.
19 Section 73-2A-3(B). While the commission must “consider the state engineer’s report
16 1 on the eligibility and priority of applicants for funds[,]” this is only one factor among
2 several it must weigh. Id. Nothing in the Act requires or implies that the acequias or
3 community ditches have to support the State Engineer’s position in litigation once
4 funding is obtained.
5 {21} As in the San Juan Agricultural Water Users Ass’n case, counsel for the Trust
6 is cautioned against the use of intemperate attacks upon opposing counsel. This
7 warning is especially appropriate here as the factual premise that they are based on is
8 faulty.
9 CONCLUSION
10 {22} For the above stated reasons, the district court’s decision is affirmed.
11 {23} IT IS SO ORDERED.
12 _______________________________ 13 BRUCE D. BLACK, Judge Pro Tem
14 WE CONCUR:
15 __________________________________ 16 LINDA M. VANZI, Chief Judge
17 __________________________________ 18 J. MILES HANISEE, Judge