Derringer v. Turney

• Decision Date: 13 August 2001
• Docket Number: No. 21,059.,21,059.
• Citation: 33 P.3d 40,131 N.M. 40,2001 NMCA 75
• Parties: David DERRINGER, Plaintiff-Appellant, v. Thomas C. TURNEY, New Mexico State Engineer and Mick and Jennifer Chapel, husband and wife, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

33 P.3d 40

131 N.M. 40

2001 NMCA 75

David DERRINGER, Plaintiff-Appellant, v. Thomas C. TURNEY, New Mexico State Engineer and Mick and Jennifer Chapel, husband and wife, Defendants-Appellees.

No. 21,059.

Court of Appeals of New Mexico.

August 13, 2001.

Certiorari Denied September 19, 2001.

David Derringer, Quemado, NM, pro se.

DL Sanders, Special Assistant Attorney General, Joseph E. Manges, Comeau, Maldegen, Templeman & Indall, LLP, Santa Fe, NM, for Appellees.

Certiorari Denied, No. 27,121, September 19, 2001.

OPINION

FRY, Judge.

{1} After the state engineer entered an adverse decision on his application for a permit to acquire water rights, Appellant David Derringer appealed to the district court. The Seventh Judicial District Court dismissed his appeal on the ground that it lacked jurisdiction over it because Derringer had not served the other parties — Mick and Jennifer Chapel (the Chapels), and the state engineer — within the required time. Derringer now appeals to this Court, and we reverse the district court's order of dismissal and instruct the district court to remand this case to the state engineer for a post-decision hearing consistent with NMSA 1978, § 72-2-16 (1973).

BACKGROUND

{2} This case developed out of a long-standing dispute over water rights between Derringer's family and the Chapels, who live on neighboring properties. In 1994, the Chapels filed suit for declaratory and injunctive relief to stop Derringer's wife and mother-in-law (the Nevitts) from damming a creek that flowed through both properties. A few months later, Derringer and the Nevitts filed an application with the state engineer for a permit to appropriate water from the creek. The state engineer had not yet ruled on the application when the district court entered a judgment declaring that the Chapels had a prior right to the water in the creek, and enjoined the Nevitts from obstructing the flow of water. On appeal to this Court from that judgment, the only issue raised was whether the Chapels were required to have a permit to store water from the creek in a pond if they then used that water to irrigate their land. We held that under the statute in effect at that time, but which has since been amended, the Chapels were not required to have a permit in order to use the water stored in their small pond for any purpose.¹

{3} In 1996, Derringer and the Nevitts sought to amend their application for a permit, and at the end of 1998, the Chapels moved in that proceeding for summary judgment and requested a hearing on their motion. Derringer and the Nevitts responded to the Chapels' request for a hearing, arguing that the hearing officers already had all the information needed to make their decision and that in the interest of judicial economy the request for a hearing should be denied. On March 4, 1999, the state engineer denied the Chapels' request for a hearing and granted their motion for summary judgment, stating that the validity of the Chapels' right to appropriate water from the creek had been determined by the district court decision in the earlier case and that there was insufficient water in the creek to permit Derringer and the Nevitts to appropriate water without interfering with the Chapels' prior right.

{4} On March 10, 1999, Derringer then requested a post-decision hearing under Section 72-2-16. On March 22, 1999, the state engineer mailed his order, entered on March 17, 1999, denying the request for a post-decision hearing, which the state engineer referred to as a "request for rehearing." Derringer then appealed the decision of the state engineer to the district court, serving his notice of appeal on the state engineer on April 8, 1999, and on the Chapels on April 19, 1999. The Chapels filed a motion to dismiss the appeal for lack of jurisdiction, arguing the appeal was untimely under NMSA 1978, § 72-7-1(B) (1971), because they were not served with the notice of appeal within thirty days of Derringer's receipt of the state engineer's decision on the motion for summary judgment. The state engineer also filed a motion to dismiss for lack of jurisdiction because Derringer did not serve the attorney general with the notice of appeal within thirty days of receiving the state engineer's decision on the motion for summary judgment. On January 10, 2000, the district court dismissed Derringer's appeal, finding it had no jurisdiction to proceed. This appeal followed.

DISCUSSION

{5} Derringer raises seven issues on appeal, six of which are substantive and arise from the state engineer's order granting summary judgment. However, because the district court dismissed the appeal without reaching the merits of what would have been a de novo appeal under Section 72-7-1(E), the only issue for us to address is whether the district court erred in concluding it lacked jurisdiction to hear Derringer's appeal from the state engineer's decision. We recognize that time limits imposed by statute for appealing decisions of administrative agencies to the courts have been strictly enforced. El Dorado Utils., Inc. v. Galisteo Domestic Water Users Ass'n, 120 N.M. 165, 167, 899 P.2d 608, 610 (Ct.App.1995). As this Court observed in El Dorado, "`[j]urisdiction of the matters in dispute does not lie in the courts until the statutorily required administrative procedures are fully complied with. The courts have no authority to alter the statutory scheme, cumbersome as it may be.'" Id. (quoting In re Application of Angel Fire Corp., 96 N.M. 651, 652, 634 P.2d 202, 203 (1981)).

{6} Section 72-7-1(B), states the applicable time limit as follows:

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.

Thus, the failure to serve any party within thirty days of the "decision, act or refusal to act" means that the district court never acquires jurisdiction to hear the appeal. Id.; see El Dorado, 120 N.M. at 169,899 P.2d at 612 (stating service "must be effected on all parties within the statutory 30-day period for the court to have jurisdiction to hear the appeal"). Both the Chapels and the state engineer argue that they were not served in a timely manner.

The Timeliness of Service on the Chapels

{7} Derringer argues that his service on the Chapels was timely because he served the Chapels within thirty days of the state engineer's refusal to act on his motion requesting a post-decision hearing. He asserts that under Section 72-2-16, the state engineer was required to hold a post-decision hearing before the case could be appealed to the district court. Because he requested a post-decision hearing, Derringer argues, he was not free to appeal until the state engineer acted or refused to act on his request. The Chapels argue that because Derringer opposed the pre-decision hearing on their motion for summary judgment, he waived whatever right he had to a post-decision hearing under Section 72-2-16. The question whether the state engineer was required to give Derringer a post-decision hearing when he had opposed a pre-decision hearing is an issue of first impression that requires us to construe Section 72-2-16.

{8} Interpretation of a statute is a matter of law, which an appellate court reviews de novo. Morgan Keegan Mortgage Co. v. Candelaria, 1998-NMCA-008, ¶ 5, 124 N.M. 405, 951 P.2d 1066. The first rule of statutory construction is that the "`plain language of a statute is the primary indicator of legislative intent.'" High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, ¶ 5, 126 N.M. 413, 970 P.2d 599 (quoting Gen. Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 76, 703 P.2d 169, 173 (1985)). Moreover, "[i]f the meaning of a statute is truly clear, it is the responsibility of the judiciary to apply it as written and not second guess the legislature's policy choices." State ex rel. State Engineer v. Lewis, 121 N.M. 323, 325, 910 P.2d 957, 959 (Ct.App. 1995).

{9} Section 72-2-16 sets out the statutory scheme for hearings on decisions of the state engineer:

The state engineer may order that a hearing be held before he enters a decision, acts or refuses to act. If, without holding a hearing, the state engineer enters a decision, acts or refuses to act, any person aggrieved by the decision, act or refusal to act, is entitled to a hearing, if a request for a hearing is made in writing within thirty days after receipt by certified mail of notice of the decision, act or refusal to act. Hearings shall be held before the state engineer or his appointed examiner. A record shall be made of all hearings. No appeal shall be taken to the district court until the state engineer has held a hearing and entered his decision in the hearing.

{10} It is undisputed that Derringer, the aggrieved party in this case, did not receive a hearing. It is also undisputed that the Chapels requested a pre-decision hearing, and Derringer responded that a pre-decision hearing was unnecessary in the interest of judicial economy because all the information the state engineer needed to decide the case was included in the record. The Chapels rely on Armijo v. Save `N Gain, 108 N.M. 281, 284, 771 P.2d 989, 992 (Ct.App.1989), to argue that Derringer's action in opposing the pre-decision hearing constituted a waiver of his right to any hearing.

{11} We are not persuaded that the analysis in Armijo applies to this case. In Armijo, a workers' compensation case, our Supreme Court addressed whether a worker's due process rights were violated by the type of process given. Citing Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the court concluded that "there is no deprivation of due process rights where a claimant has been accorded an opportunity to be heard through the informal hearing and...