Ditch v. D'antonio
| Citation | 2011 -NMCA- 104,150 N.M. 590,263 P.3d 932 |
| Decision Date | 21 September 2011 |
| Docket Number | No. 29,778.,29,778. |
| Parties | STORM DITCH, a community ditch, Plaintiff–Appellant,v.John R. D'ANTONIO, Jr., New Mexico State Engineer, Defendant–Appellee. |
| Court | Court of Appeals of New Mexico |
OPINION TEXT STARTS HERE
George Chandler Law, George Chandler, Los Alamos, NM, for Appellant.DL Sanders, Chief Counsel, Martha C. Franks, Special Assistant Attorney General, Santa Fe, NM, for Appellee.H. John Underwood, Ltd., Zach Cook, Ruidoso, NM, for Ruidoso Downs.
{1} Two years after the time for filing a protest had expired, Storm Ditch, a community acequia, tried to protest an application filed with the State Engineer by the estate of Alfred McTeigue (the Estate) and the City of Ruidoso Downs (together, the Applicants) for the transfer of the Estate's water rights from the acequia. We must decide whether the Applicants gave proper notice of their application to Storm Ditch. We conclude that notice by publication, as required by statute, was sufficient and proper notice to Storm Ditch and that Storm Ditch's protest came too late. As a result, we affirm the denial of Storm Ditch's motions to intervene in the application process, its request for a hearing before the State Engineer, and its petition for mandamus.
{2} In December 2004, the Applicants filed an application with the State Engineer to transfer water rights owned by the Estate from Storm Ditch to the City of Ruidoso Downs (the City). If a proposed transfer of water rights moves water into or out of an acequia, the transfer cannot be approved unless the applicant complies with any requirements adopted by the acequia, and the applicant must submit documentary evidence of such compliance along with the application. See NMSA 1978, § 72–5–24.1(A), (B) (2003). If an acequia has not adopted any requirements for approval, the applicant must submit an affidavit from the commissioners of the acequia stating this fact. See § 72–5–24.1(C). In this case, the Applicants did not submit the required affidavit when they submitted the application, but it is undisputed that at the time the application was filed, Storm Ditch did not have any bylaws or regulations requiring approval for any changes or transfers in water rights.
{3} The Applicants sought to comply with the statutory notice requirement, NMSA 1978, Section 72–5–4 (2001), by publishing a notice of the application in a local newspaper on three occasions, with the last publication occurring on January 13, 2005. Four days prior to the deadline for filing protests, a friend of Storm Ditch commissioner Lucia Sanchez informed her of the application during a telephone call. Entities other than Storm Ditch filed timely protests with the State Engineer. See NMSA 1978, § 72–5–5 (1985) (). Storm Ditch did not file a protest within the time limit.
{4} A hearing on the application was convened and then adjourned so that settlement negotiations could take place between the Applicants and the protestants. A little over two years later, the Applicants became aware that they needed to obtain an affidavit from Storm Ditch indicating that Storm Ditch had not adopted any compliance requirements for applicants seeking transfer of water into or out of the acequia, as required by Section 72–5–24.1(C). The administrative proceedings were stayed pending receipt of the affidavit.
{5} The Applicants approached Storm Ditch to obtain the affidavit. Storm Ditch refused to provide it and instead filed a motion to intervene in the application proceeding or, in the alternative, to have the application dismissed. In the motion, Storm Ditch argued that the Applicants' failure to comply with the affidavit requirements of Section 72–5–24.1(C) resulted in a lack of constitutionally required notice to Storm Ditch of a proceeding directly affecting its interests. It also argued that the notice given by telephone to one of its commissioners four days before the protest period ended was insufficient because the four days did not allow enough time to file a protest.
{6} The hearing officer from the Office of the State Engineer (OSE) denied Storm Ditch's motion to intervene without holding a hearing. He found that Storm Ditch had in fact received notice of the application when the commissioner received notice by telephone before the protest deadline. He also rejected Storm Ditch's argument that the affidavit requirement in Section 72–5–24.1(C) mandated the Applicants to provide Storm Ditch with actual notice. The hearing officer lifted the stay of the administrative proceedings related to the application because an affidavit from one of Storm Ditch's commissioners, previously attached to the motion to intervene, acknowledged that at the time the application was filed, Storm Ditch had yet to enact a rule or bylaw requiring that changes in water rights be subject to the approval of the commissioners.
{7} Storm Ditch filed a motion for a hearing before the State Engineer consistent with NMSA 1978, Section 72–2–16 (1973), for reconsideration of the denial of its motion to intervene because it had not received constitutionally adequate notice of the application. The State Engineer denied Storm Ditch's motion without holding a hearing. He found that no hearing was required because Storm Ditch had failed to file a timely objection or protest and, as a result, it was not a party to the application. He also found that Storm Ditch had no bylaws requiring that any change in water rights be subject to acequia approval and that a Storm Ditch commissioner had actual notice four days before the protest period expired. Storm Ditch received notice of the denial by certified mail.
{8} Storm Ditch again filed a request for a hearing with the State Engineer. The OSE hearings unit administrator sent a letter to Storm Ditch informing it that the case was closed because Storm Ditch's initial motion had been heard on the basis of the pleadings and the acequia commissioner's affidavit. The letter also indicated that the State Engineer had determined that any request for a further hearing on the motion should be denied.
{9} Storm Ditch appealed to the district court and petitioned for a writ of mandamus requiring the State Engineer to hold a hearing on its earlier motion to intervene, consistent with Section 72–2–16. The State Engineer and the City filed motions to dismiss.
{10} The district court dismissed the appeal and the petition for writ of mandamus, finding that Storm Ditch was not a party because it failed to file a timely protest to the application and, as a result, it did not qualify as an aggrieved person for purposes of the hearing requirements in Section 72–2–16. The court further found that, because Storm Ditch was not aggrieved, it had no standing to appeal. Finally, the court found that, under NMSA 1978, Section 72–7–1 (1971), Storm Ditch had failed to file a timely appeal of the State Engineer's initial decision denying Storm Ditch's motion to intervene. This appeal followed.
{11} Storm Ditch raises three issues on appeal that we have combined into two issues. First, it claims that, consistent with due process considerations and with the affidavit requirement of Section 72–5–24.1, it was entitled to receive actual notice of the proposed transfer of water rights from the acequia. Asserting that it did not receive proper notice, it contends that it was not required to file its protest within the statutory time limits. Second, Storm Ditch argues that the State Engineer improperly denied its request for a hearing. Because a hearing before the State Engineer is a prerequisite to a district court appeal under Section 72–2–16, Storm Ditch maintains that the district court should have either determined that Storm Ditch's appeal was timely or granted its petition for a writ of mandamus requiring the State Engineer to hold a hearing on the denial of its motion to intervene.
{12} The contentions raised by Storm Ditch in its appeal require interpretation of various water law statutes and, as a result, review is de novo. See Derringer v. Turney, 2001–NMCA–075, ¶ 8, 131 N.M. 40, 33 P.3d 40 ().
{13} Storm Ditch argues that it should not be bound by the statutory time limits for filing a protest because the affidavit requirement in Section 72–5–24.1 entitles it and all other acequias to actual notice rather than the notice by publication that occurred in this case. To provide context, we first review the relevant portions of the statutory time limits governing protests.
{14} Section 72–5–5(A) provides:
Whenever an application is filed which requires advertisement[,] ... the advertisement shall state that objections or protests to the granting of the application may be filed with the state engineer within ten days after the last publication of the notice. If objection or protest is timely filed, the state engineer shall advise interested parties, and a hearing shall be held as otherwise provided by statute.
Under this provision, anyone wanting to protest or object to the Applicants' application in the present case had until January 23, 2005, to file an objection or protest. It is undisputed that Storm Ditch failed to do this. Despite its failure to comply with Section 72–5–5(A), Storm Ditch claims that it was excused from filing a timely protest; and it was entitled to intervene over two years later because it did not receive proper notice of the application. Cf. Eldorado at Santa Fe, Inc. v. Cook, 113 N.M. 33, 36–37, 822 P.2d 672, 675–76 (Ct.App.1991) (...
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Nat'l Educ. Ass'n of N.M. v. Santa Fe Pub. Sch.
...were therefore not under any clear statutory duty to provide him with one. See Storm Ditch v. D'Antonio, 2011-NMCA-104, ¶¶ 34-35, 150 N.M. 590, 263 P.3d 932 (holding that the plaintiff was not entitled to mandamus compelling an administrative hearing because it failed to timely file a prote......