Herrington v. State of N.M. ex rel. Office

• Decision Date: 09 March 2006
• Docket Number: No. 28,628.,28,628.
• Parties: Ellis B. and Laverne HERRINGTON, Petitioners, v. STATE of New Mexico ex rel. OFFICE OF the STATE ENGINEER, Respondent.
• Court: New Mexico Supreme Court

Page 258

133 P.3d 258

2006 NMSC 014

Ellis B. and Laverne HERRINGTON, Petitioners, v. STATE of New Mexico ex rel. OFFICE OF the STATE ENGINEER, Respondent.

No. 28,628.

Supreme Court of New Mexico.

March 9, 2006.

Corrected April 26, 2006.

COPYRIGHT MATERIAL OMITTED

Law & Resource Planning Associates, P.C., Charles T. DuMars, Christina Bruff DuMars, Albuquerque, NM, for Petitioners.

D.L. Sanders, Stacey J. Goodwin, Santa Fe, NM, for Respondent.

Patricia A. Madrid, Attorney General, Stephen Robert Farris, Assistant Attorney General, Keitha Anne Leonard, Special Assistant Attorney General, Tanya M. Trujillo, Special Assistant Attorney General, for Amicus Curiae New Mexico Interstate Stream Commission.

Stein & Brockmann, P.A., Jay F. Stein, James C. Brockmann, Montgomery & Andrews, P.A., John B. Draper, Santa Fe, NM, for Amicus Curiae.

OPINION

BOSSON, Chief Justice.

{1} The Herringtons, long time irrigators in the Rio de Arenas Valley in southwestern New Mexico, applied to the New Mexico State Engineer for a supplemental well. The Herringtons claimed their surface right had been diminished by groundwater wells in the basin, having a priority date junior to the surface right of the Herringtons. Applying the principles of fairness that underscore the doctrine in Templeton v. Pecos Valley Artesian Conservancy District, 65 N.M. 59, 332 P.2d 465 (1958), the Herringtons sought to supplement their surface water rights with a well.

{2} We granted certiorari to clarify certain confusion that adheres to the Templeton doctrine generally, and as applied to this case by the district court and the Court of Appeals. We also briefly discuss the important distinctions that continue to exist between a Templeton well and a statutory transfer of water rights pursuant to state statute. We reverse and remand to the district court with instructions for further proceedings consistent herewith.¹

BACKGROUND²

{3} The Rio de Arenas is a tributary of the Mimbres River in southwestern New Mexico, originating in the mountains northeast of Silver City. The Herringtons' history as irrigators in the Rio de Arenas Valley extends back many years as does the Herringtons' contentious history with the State Engineer. The Herringtons' relationship with the State Engineer began over 25 years ago, during the general stream adjudication of the Rio Mimbres stream system.

{4} During the adjudication, the Herringtons claimed a pre-1907 right to divert a total of 49.73 acre-feet of water per year from the Rio de Arenas, or 2.7 acre-feet per year per acre on their 18.42 acres of land. The State Engineer contested this claim, arguing that groundwater discharged through springs becomes baseflow in the Rio de Arenas. The State Engineer therefore likened the Herringtons' case to Templeton, and asserted the Herringtons had not only the right, but the responsibility to drill a supplemental well to preserve their right and avoid abandonment. As a result, the State Engineer concluded that the Herringtons were not actually using water in that amount and had abandoned their water right. See Templeton, 65 N.M. 59, 332 P.2d 465; see also State ex rel. Reynolds v. South Springs Co., 80 N.M. 144, 452 P.2d 478 (1969). Ultimately, the State Engineer's abandonment argument was rejected, and the Herringtons prevailed in establishing a pre-1907 water right for 49.73 acre-feet of water per year.

{5} In 1982, on the heels of the adjudication, the Herringtons filed an application to change their point of surface diversion from the original point at the Frazier-Bateman Ditch to a 100-foot-deep well. In pursuing the application, the Herringtons relied on the State Engineer's hydrologic assessment during the adjudication proceedings that their case was similar to the Templeton case, and therefore warranted a supplemental well. The Herringtons argued that groundwater pumping by upstream junior appropriators had diminished the surface water available at their existing point of diversion, thereby requiring the Herringtons to seek an alternative means of drawing water from the same source. The proposed well was to be located roughly a quarter mile downstream of the original diversion point, and would reach a depth of 100 feet. At this depth, the well would tap fractured sandstone and shale, or the "fractured bedrock aquifer," which underlies the alluvium. Potentially, the well could be screened to draw water from any depth down to 100 feet. No protests were filed with the State Engineer from neighboring well owners. Nonetheless, the State Engineer opposed the well, despite having suggested just such a well during the earlier stream adjudication.

{6} In 1983, the State Engineer denied the application. The Herringtons sought a hearing in front of a hearing examiner from the State Engineer. Inexplicably, the State Engineer did not set a hearing for eighteen years. At the 2001 hearing, the State Engineer reversed its position taken during the earlier adjudication and argued that the Herringtons' surface diversion consisted only of flood flows, and not of baseflow. The State Engineer also argued that the groundwater diversion would cause impairment to existing water rights owners, despite the fact that none of those other well owners filed a protest. Thus, according to the State Engineer, the Herringtons were not entitled to a supplemental well because the well would draw from a different source of water and comprise a new appropriation that would impair others. Agreeing with the State Engineer, the hearing examiner denied their application.

{7} The Herringtons appealed de novo to the district court as provided by NMSA 1978, Section 72-7-1 (1971). Both parties presented significant evidence regarding the effect of the proposed well on neighboring wells. The district court concluded that pumping at a rate of 49.73 acre-feet per year would impair existing rights, but pumping at a rate of 24.86 would not. Regarding the source of the Rio de Arenas streamflow, the Herringtons argued that the Rio de Arenas is a perennial stream fed by both flood flow and baseflow, and that a portion of the baseflow had been depleted by groundwater wells. The State Engineer argued to the contrary that the Rio de Arenas consisted only of flood flows, and is therefore an ephemeral stream. Significantly for the appeal before us, the district court accepted the Herringtons' view of the hydrology, finding that the Rio de Arenas is an interrupted perennial stream fed by baseflow, and that the Herringtons' supply had been diminished by local groundwater wells.

{8} However, the district court also appeared to find that at the proposed depth of 100 feet, the Herringtons' well would draw from a different source of water than that which supplied their original surface diversion. Finally, the district court found that moving the point of diversion to a downstream location conflicted with its understanding of principles announced under the Templeton line of cases, which permit a supplemental well under specific hydrologic conditions. As a result, the district court denied the application.

{9} The Court of Appeals affirmed the district court. The Court of Appeals agreed that both the topographic location and the depth of the proposed well would result in the Herringtons' access to a new source of water, and thus ran contrary to the Templeton doctrine. Herrington v. State ex rel. Office of State Engineer, 2004-NMCA-062, ¶¶ 13-14, 135 N.M. 585, 92 P.3d 31. The Court of Appeals also concluded that the Herringtons did not have a right to change their point of diversion to a groundwater well independent of the requirements of Templeton, even under statutory provisions. Id. ¶¶ 17-20, 332 P.2d 465; NMSA 1978, §§ 72-5-23, -24 (1985).

{10} The Herringtons petitioned for certiorari to this Court, arguing that theirs is a paradigmatic Templeton case, under which they have a legal right to a well that draws water from the same source that formerly fed the stream. The Herringtons argue that in rejecting the well application, both the district court and Court of Appeals misinterpreted the law surrounding the Templeton line of cases. Given the importance of the Templeton doctrine to water policy in New Mexico, we granted certiorari to address significant legal issues raised by this petition.

DISCUSSION

Templeton Doctrine

{11} Both parties agree that Templeton is the central legal authority for this case, and that the Herringtons must satisfy the Templeton predicates to be successful in their well application. Templeton, 65 N.M. at 68, 332 P.2d at 471, defines a specific hydrologic circumstance where junior wells intercept groundwater that previously discharged to the surface, thereby depriving a senior appropriator of their water right. To address this circumstance, this Court in Templeton fashioned an equitable remedy to allow senior surface water appropriators, impacted by junior wells, to timely reassert their priority by drilling a supplemental well. Id. Through the well, the senior surface right owner can supplement existing surface supply, if any, by drawing upon groundwater that originally fed the surface water supply. Although the New Mexico prior appropriation doctrine³ theoretically does not allow for sharing of water shortages, the Templeton doctrine permits both the aggrieved senior surface appropriator and the junior to divert their full share of water. NMSA 1978, § 72-1-2 (1907).

{12} The only two cases decided by this Court in which the applicants were granted a right to drill Templeton supplemental wells are the original Templeton case, and Langenegger v. Carlsbad Irrigation District, 82 N.M. 416, 417, 483 P.2d 297, 298 (1971). Both parties here agree that a successful supplemental well application depends on whether the Herrington facts track Templeton or Langenegger. It is therefore important to understand the specific facts of these two cases.

{13} The applicants in Templeton, 65 N.M. at 61, 332 P.2d...