Hanson v. Turney

• Decision Date: 01 April 2004
• Docket Number: No. 22,851.,22,851.
• Parties: Mabel HANSON and Hanson Enterprises, Inc., Plaintiffs-Appellants, v. Thomas C. TURNEY, New Mexico Office of the State Engineer, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

94 P.3d 1

136 N.M. 1

2004 NMCA 69

Mabel HANSON and Hanson Enterprises, Inc., Plaintiffs-Appellants, v. Thomas C. TURNEY, New Mexico Office of the State Engineer, Defendant-Appellee.

No. 22,851.

Court of Appeals of New Mexico.

April 1, 2004.

Peter B. Rames, Albuquerque, for Appellants.

Susanne Hoffman-Dooley, New Mexico Office of the State Engineer, Santa Fe, for Appellee.

OPINION

BUSTAMANTE, J.

{1} NMSA 1978, § 72-12-7(A) (1985) allows the owner of a "water right" to change the use of the water. Plaintiff Mabel Hanson had two permits to appropriate water but never put the water to beneficial use. When she filed applications to change the use from irrigation to subdivision use, the State Engineer denied her requests, reasoning that her failure to put the water to beneficial use meant that there was no "water right" to be changed. Plaintiff argues that a permit to appropriate water constitutes a "water right" that can be changed even if there has been no beneficial use. We agree with the State Engineer, and affirm.

BACKGROUND

{2} The State Engineer exercises administrative control over a particular groundwater basin by declaring it and defining its boundaries. NMSA 1978, § 72-12-1 (2003). Because the Estancia Basin is a declared basin, Plaintiff, who wished to appropriate water from this basin, had to apply for a permit to appropriate water. NMSA 1978, § 72-12-20 (1983); NMSA 1978, § 72-12-3 (2001). In determining whether to issue a permit, the State Engineer considers the applicant's application and grants it if there are unappropriated waters or if the proposed appropriation would not impair existing water rights from the source, is not contrary to the conservation of water within the state, and is not detrimental to the public welfare of the state. § 72-12-3(A), (E).

{3} Plaintiff acquired two permits to appropriate water for irrigation purposes. Permit number E-4859 & S was issued by the State Engineer on March 20, 1989, and Permit number E-5340 was issued on January 23, 1992. Plaintiff drilled two wells, but it is undisputed she never put the water to beneficial use. Plaintiff later filed two applications, under Section 72-12-7(A), requesting a change to subdivision use. The State Engineer denied both applications because no water had been put to beneficial use.

{4} A State Engineer Hearing Officer agreed with these decisions, and the State Engineer adopted the Hearing Officer's Report and Recommendation. Plaintiff appealed to the district court pursuant to NMSA 1978, § 72-7-1 (1971), which provides for a de novo appeal, and both parties moved for summary judgment. The court granted the State Engineer's motion, and Plaintiff appeals.

DISCUSSION

{5} Summary judgment is proper where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582.

A. Statutory Construction

{6} Section 72-12-7(A) states: "The owner of a water right may change the location of his well or change the use of the water, but only upon application to the state engineer." This appeal requires us to decide the meaning of the term "water right," as used in this section. Does it include a permit to appropriate water, even when no water has been put to beneficial use, as Plaintiff contends? Or does it require the perfection of a water right through beneficial use, as the State Engineer contends? While we agree that Plaintiff took the initial step to obtain a water right, and had a right to appropriate water, we are not persuaded that her permits alone establish that she is the owner of a "water right," as that term is used in Section 72-12-7(A).

{7} Because this presents an issue of statutory construction, and whether summary judgment is proper, our review is de novo. See Rutherford v. Chaves County, 2003-NMSC-010, ¶ 8, 133 N.M. 756, 69 P.3d 1199

; Self, 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. When a statute is clear and unambiguous, we interpret it as written. See State v. Jonathan M., 109 N.M. 789, 790, 791 P.2d 64, 65 (1990). If, however, the language of the statute is ambiguous, we must interpret the statute, and determine legislative intent. See State ex rel. Helman v. Gallegos, 117 N.M. 346, 353, 871 P.2d 1352, 1359 (1994). Here, the term "water right" is ambiguous, so we must determine legislative intent.

{8} We begin our analysis by recognizing that establishing a water right is a process that takes a period of time. See State ex rel. Reynolds v. Mendenhall, 68 N.M. 467, 473, 362 P.2d 998, 1002-03 (1961)

(accepting that it may require years to commence an appropriation, drill a well, install equipment, and dig ditches, all as prerequisite to applying the water to a beneficial use); Millheiser v. Long, 10 N.M. 99, 106-07, 61 P. 111, 114 (1900) (noting that the building of ditches, flumes, and other works are necessary to divert water and apply it to beneficial use).

{9} A water permit is an inchoate right, and "is the necessary first step" in obtaining a water right. See Green River Dev. Co. v. FMC Corp., 660 P.2d 339, 348-51 (Wyo.1983)

. It is "the authority to pursue a water right — a conditional but unfulfilled promise on the part of the state to allow the permittee to one day apply the state's water in a particular place and to a specific beneficial use under conditions where the rights of other appropriators will not be impaired." Id. at 348.

{10} For more than a century, our law has been that a water right is perfected by the application of the water to beneficial use. See Holguin v. Elephant Butte Irrigation Dist., 91 N.M. 398, 402, 575 P.2d 88, 92 (1977)

(stating that "[t]he water right is acquired by perfecting an appropriation, i.e., by an actual diversion followed by an application within a reasonable time of the water to a beneficial use" (internal quotation marks and citation omitted)), overruled on other grounds by C.E. Alexander & Sons, Inc. v. DEC Int'l Inc., 112 N.M. 89, 91, 811 P.2d 899, 901 (1991); State ex rel. State Eng'r v. Crider, 78 N.M. 312, 315, 431 P.2d 45, 48 (1967); Cartright v. Pub. Serv. Co., 66 N.M. 64, 114, 343 P.2d 654, 689 (1958) (stating that "[n]o water right becomes vested until it has been applied to beneficial use to the full extent of its right") (Federici, J., dissenting); First State Bank of Alamogordo v. McNew, 33 N.M. 414, 436, 269 P. 56, 65 (1928); Snow v. Abalos, 18 N.M. 681, 694, 140 P. 1044, 1048 (1914) ("The intention to apply to beneficial use, the diversion works, and the actual diversion of the water necessarily all precede the application of the water to the use intended, but it is the application of the water, or the intent to apply, followed with due diligence toward application and ultimate application, which gives to the appropriator the continued and continuous right to take the water."); Millheiser, 10 N.M. at 106-07, 61 P. at 113-14. "Beneficial use is the basis for a water right in New Mexico." State ex rel. Martinez v. McDermett, 120 N.M. 327, 330, 901 P.2d 745, 748 (Ct.App.1995); see N.M. Const. art. XVI, § 3 ("Beneficial use shall be the basis, the measure and the limit of the right to the use of water."); NMSA 1978, § 72-12-2 (1931). Beneficial use is "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." McDermett, 120 N.M. at 330,

901 P.2d at 748 (internal quotation marks and citation omitted).

{11} We presume the legislature was aware of this significant body of water law when it enacted Section 72-12-7(A). See State ex rel. Citizens for Quality Educ. v. Gallagher, 102 N.M. 516, 519, 697 P.2d 935, 938 (1985)

(stating that the legislature is presumed to know the laws in existence). We also presume the legislature intended that the term "water right" should be construed consistently with this significant body of law. If the legislature had intended a different interpretation of "water right," we would expect the legislature to have clearly expressed it.

{12} The legislature was aware of the distinction between holders of permits and owners of water rights, as shown by NMSA 1978, § 72-12-8 (2002), which provides that "the owner of a water right" or "the holder of a permit from the state engineer to appropriate any such waters" forfeits their right if the water is not applied to beneficial use. § 72-12-8(A); see also § 72-12-8(H) (distinguishing between the "holder of a valid water right" and a "permit to appropriate waters"). It is thus clear that if the legislature intended to treat permit holders the same as owners of water rights, it knew how to draft a statute which would successfully do so. The fact that the legislature did not do so, plus the absence of any reference to permit holders in Section 72-12-7(A), is compelling evidence that the legislature did not intend to allow permit holders who had not yet applied any water to beneficial use to be considered owners of a water right. See Citizens for Quality Educ., 102 N.M. at 519, 697 P.2d at 938 (noting that, had it intended to do so, the legislature could have included language prohibiting withdrawal of signatures placed on a petition for recall, but did not do so); Herrera v. Quality Imports, 1999-NMCA-140, ¶ 8, 128 N.M. 300, 992 P.2d 313 (noting that the legislature is presumed to know existing law and knew how to include disability modifiers in the definition of "disability," but chose not to do so).

{13} Our conclusion is supported by Green River Dev. Co., in which the Wyoming Supreme Court interpreted a statute that allowed "an owner of a water right" to change its use or place of use. There, the Court considered whether a permit to appropriate water was a "water right" when the permit waters had never been put to beneficial use. The court held that a permit "is the necessary first step" in obtaining a water right, but that without an application to beneficial use, it was not...