Bounds v. State

Citation306 P.3d 457
Decision Date25 July 2013
Docket NumberNos. 32,713,32,717.,s. 32,713
CourtSupreme Court of New Mexico
PartiesHorace BOUNDS, Jr., Plaintiff–Petitioner, v. STATE of New Mexico, ex rel. John R. D'ANTONIO, Jr., New Mexico State Engineer, Defendant–Respondent. New Mexico Farm & Livestock Bureau, Intervenor–Petitioner, v. State of New Mexico, And John R. D'Antonio, Jr., New Mexico State Engineer, Defendants–Respondents.


Law Office of Beverly Singleman, Beverly J. Singleman, Mesilla Park, NM, Miller Stratvert, P.A., Joshua L. Smith, Las Cruces, NM, for Petitioner Horace Bounds.

Hennighausen & Olsen, L.L.P., Arnold J. Olsen, Alvin F. Jones, Jeff Grandjean, Roswell, NM, for Petitioner New Mexico Farm & Livestock Bureau.

D.L. Sanders, Martha Clark Franks, Santa Fe, NM, for Respondents.

Eugene I. Zamora, Marcos D. Martinez, Santa Fe, NM, for Amicus Curiae City of Santa Fe.

Calvert Menicucci, P.C., Sean R. Calvert, Albuquerque, NM, Kegler, Brown, Hill & Ritter, Co. L.P.A., Donald W. Gregory, Jeremiah E. Thomas, Columbus, OH, for Amicus Curiae National Ground Water Association.

Peifer, Hanson & Mullins, P.A., Tiffany Elaine Dowell, Albuquerque, NM, Law Offices of Jesse J. Richardson, Jr., Jesse J. Richardson, Jr., Blacksburg, VA, for Amicus Curiae Water Systems Council.

Taylor & McCaleb, P.A., Jolene Lucille McCaleb, Elizabeth Newlin Taylor, Corrales, NM, for Amicus Curiae New Mexico Ground Water Association.

Law & Resource Planning Associates, P.C., Charles Thomas DuMars, Stephen Curtice, Albuquerque, NM, for Amici Curiae 4 Daughters Land & Cattle Company, Great Western Ranch, LLC, Sanders Land & Cattle, Inc.


BOSSON, Justice.

{1} Horace Bounds is a rancher and farmer in the Mimbres basin in southwestern New Mexico, a fully appropriated and adjudicated basin. Bounds, joined by the New Mexico Farm and Livestock Bureau (collectivelyPetitioners), brought a facial constitutional challenge against the New Mexico Domestic Well Statute (DWS), NMSA 1978, Section 72–12–1.1 (2003), which requires the State Engineer to issue domestic well permits without determining the availability of unappropriated water. Petitioners contend that the DWS violates the New Mexico constitutional doctrine of prior appropriation as well as due process of law. Petitioners' arguments persuaded the district court but not the Court of Appeals, which reversed in a published opinion. Agreeing with the substance of that opinion, we affirm the Court of Appeals. For the reasons that follow, we hold that the DWS does not violate either the doctrine of prior appropriation set forth in the New Mexico Constitution or the guarantees of due process of law.


{2} Bounds has the adjudicated right to irrigate 157.63 acres of farm and ranchland with some of the most senior surface water rights along the Upper Mimbres. At the time of this suit, Bounds had fewer than 100 head of cattle, and much of his water rights were used for irrigated pasture to support the herd; the primary purpose of the farm is livestock feed.

{3} This case began on June 15, 2006, when Bounds filed an action for declaratory judgment in the Sixth Judicial District Court. The first count of his complaint asked the district court to declare the DWS unconstitutional because it requires the State Engineer to issue domestic well permits without regard to the availability of unappropriated water, to the detriment of senior water users and in violation of the doctrine of prior appropriation. The second count sought a declaration that the issuance of domestic well permits under the DWS constitutes a taking of vested property rights without compensation, in violation of the United States Constitution, the New Mexico Constitution, and 42 U.S.C. § 1983 (2006). Finally, Bounds sought an injunction preventing the State Engineer from issuing new domestic well permits without first determining that unappropriated water is available.

{4} Before he filed this suit asking the district court to enjoin the State Engineer from issuing further permits under the DWS, Bounds took full advantage of the statute's simple permitting procedures. According to the record, he currently has five domestic and livestock wells, most recently drilled in 2005 and all acquired under the same permitting process that Bounds now challenges. Bounds also enjoyed the benefit of this statute when he subdivided and sold a portion of his farm in 1998. According to the State Engineer, the twelve-lot subdivision was approved by Grant County, New Mexico, for the sale of individual lots to be served by domestic wells.” Jo Bounds, Horace's wife, testified that four of the twelve lots have been developed, leaving five to eight lots yet to drill domestic wells.

{5} The New Mexico Farm and Livestock Bureau (NMFLB) filed a motion to intervene. NMFLB is an independent, nongovernmental entity that represents over 14,000 farm and ranch families, and advocates on their behalf in the state Legislature as well as in state and federal courts. The district court granted the motion to intervene.

{6} After the case was delayed for reasons not relevant to this appeal, the State Engineer filed a motion for summary judgment. The State Engineer argued that the DWS “is a clear expression of legislative intent to treat certain necessary water uses differently,” and that [i]n creating this distinction, the Legislature has articulated a class of uses of public water that is reasonably subject to treatment outside the scope of the general scheme of appropriations.” Thereafter, the parties stipulated to allowing the court to decide the legal issues presented on the pleadings, record, and evidence submitted.

{7} The district court ultimately concluded that the DWS is unconstitutional as a matter of law “because it creates an impermissible exception to the priority administration system.” The court reasoned that [i]t is not logical, let alone consistent with constitutional protections, to require the [State Engineer] to issue domestic well permits without any consideration of the availability of unappropriated water or the priority of appropriated water.” In addition, the court found a lack of evidence to support Bounds' claim of impairment of existing rights or his claim to related monetary damages. The court dismissed Bounds' takings claim. The State Engineer appealed the district court's constitutional ruling to the Court of Appeals.

{8} Reversing the district court, the Court of Appeals declared that the prior appropriation doctrine, enshrined in Article XVI of the New Mexico Constitution, is “a broad priority principle, nothing more,” an observation that has caused consternation among New Mexico's water community. Bounds v. State, 2011–NMCA–011, ¶ 37, 149 N.M. 484, 252 P.3d 708. Noting that the prior-appropriation doctrine in the New Mexico Constitution is not self-executing, the Court of Appeals observed that “a particular priority administration process is not dictated by the priority doctrine but instead is in the Legislature's hands pursuant to its authority to enact statutes providing for the administration of appropriation and use of surface and groundwater.” Id. ¶ 42. Ultimately, the Court of Appeals concluded that

the priority doctrine [in the New Mexico Constitution] is not a system of administration. It does not dictate any particular manner of administration of appropriation and use of water or how senior water rights are to be protected from junior users in time of water shortages. That the Legislature determines that domestic well permits are to be issued upon application without prior evaluation of water availability or impairment is not, in and of itself, a per se violation of the priority doctrine or of the Legislature's constitutional duty to assure that senior water rights are protected under the priority doctrine. Although a basin is considered fully appropriated with no unappropriated water available, we do not see how the Legislature is forbidden under a facial constitutional attack from nevertheless enacting an exception to its existing statutory regime permitting additional appropriation for domestic purposes as long as senior water rights are not in fact impaired or subject to impending impairment....

Id. ¶ 45.

{9} Bounds and NMFLB filed separate petitions for certiorari to review both the holding and the reasoning of the Court of Appeals opinion in light of its broad public policy implications, which this Court granted. See2011–NMCERT–001, 150 N.M. 560, 263 P.3d 902. For the reasons that follow, we affirm the facial constitutionality of the DWS.

DISCUSSIONA. Standard of Review

{10} Petitioners present two basic arguments for consideration. First, because the DWS requires the State Engineer to issue domestic well permits without regard to whether unappropriated water is available, the DWS creates an impermissible exception to the language of Article XVI, Section 2 of the New Mexico Constitution which states that “priority of appropriation shall give the better right.” Second, a failure to provide notice and an opportunity to be heard prior to issuing a domestic well permit violates Petitioners' due process rights.1

{11} Each of these arguments presents a constitutional challenge to the DWS. A constitutional challenge to a statute is reviewed de novo. Tri–State Generation & Transmission Ass'n v. D'Antonio, 2012–NMSC–039, ¶ 11, 289 P.3d 1232. ‘It is well settled that there is a presumption of the validity and regularity of legislative enactments.’ State ex rel. Udall v. Pub. Emps. Ret. Bd., 120 N.M. 786, 788, 907 P.2d 190, 192 (1995) (quoting Espanola Hous. Auth. v. Atencio, 90 N.M. 787, 788, 568 P.2d 1233, 1234 (1977)). We will uphold a statute “unless we are satisfied beyond all reasonable doubt that the Legislature went outside the bounds fixed by the Constitution in enacting the challenged legislation.” Id. We do not “inquire into the wisdom or policy of an act of the Legislature.” Id. Rather,

[w]e presume that the Legislature has performed its...

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