Mimbres Valley Irrigation Co. v. Salopek
| Decision Date | 29 June 2006 |
| Docket Number | No. 25,570.,25,570. |
| Parties | MIMBRES VALLEY IRRIGATION CO., Plaintiff, v. Tony SALOPEK, et al., Defendants, State of New Mexico ex rel. State Engineer, Plaintiff-In-Intervention-Appellee, v. San Lorenzo Community Ditch Association, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Office of the State Engineer, DL Sanders, Chief Counsel, Francis L. Reckard, Special Assistant Attorney General, Tracy L. Hofmann, Special Assistant Attorney General, Santa Fe, NM, for Appellee.
Peter Thomas White, Santa Fe, NM, for Appellant.
{1} This case involves a mandamus action brought in the district court seeking to enforce adjudicated rights to water in the Mimbres River Stream System in southwestern New Mexico. San Lorenzo Community Ditch Association appeals from a district court order quashing a peremptory writ of mandamus after the district court determined that a peremptory writ of mandamus was not proper because the pleadings raised issues of fact and that San Lorenzo otherwise has a plain, speedy, and adequate remedy in the ordinary course of the law. We conclude that we do not have jurisdiction over this case because no final, appealable order is before us. We dismiss the appeal.
{2} The history of this case began in 1970 when the State Engineer filed a complaint in intervention to adjudicate all water rights having as their source of water the public surface or underground waters of the Mimbres River Stream System or Mimbres Underground Water Basin. In 1993, the final decree adjudicating those rights was filed in the district court. The final decree determined in part that San Lorenzo has water rights that are senior to those of other upstream individuals and entities who also own water rights enabling them to divert water from the Mimbres River. All defendants, their successors, assigns, lessees, and any other person having actual or constructive knowledge of the decree were "permanently enjoined from any diversion or use of the public waters of the Mimbres River Stream System and Mimbres Underground Water Basin, except in accordance with the adjudication orders and this decree." The final decree further provided that the court would appoint a Water Master to administer the orders within the decree and that the court would retain jurisdiction of the case to enforce its adjudication orders and to otherwise administer its provisions. The district court then appointed the Water Master requested by the State Engineer.
{3} In September 2003, San Lorenzo filed a petition for preliminary and permanent injunction to enjoin upstream surface water users from diverting water from the Mimbres River when the flows of the river were insufficient to satisfy its own diversion requirements as adjudicated in the final decree. While the petition alleged that upstream surface water users were diverting surface water from the Mimbres River in derogation of its superior rights, it also acknowledged that it was not possible to determine if the cause of San Lorenzo's water supply shortages was due to the Water Master failing to measure or monitor the diversions or because of drought conditions. In part, San Lorenzo's petition for preliminary and permanent injunction requested the district court to enter its order:
A. Granting its preliminary and permanent injunction requiring that the respondents, their agents and employees from diverting the surface waters of the Mimbres River until and so long as the flow of the Mimbres River arriving at the San Lorenzo Community Ditch diversion dam is 6.7 cubic feet per second;
B. Issuing a mandatory injunction requiring the respondents to construct headgates, if one does not exist, and install measuring devices on their ditches[.]
{4} The district court then filed an order of reference to the Water Master directing the Water Master to convene a meeting of San Lorenzo and private upstream ditches in an effort to apportion the water so that San Lorenzo could get its rightful priority and if no agreement among the ditches was reached, "the Water[M]aster may specify a rotation period for the allocation of water among the ditches." A meeting was subsequently convened and the representatives of the ditches were unable to agree upon a rotation schedule for distribution of water. Accordingly, the Water Master ordered a rotation system of water distribution on April 8, 2004. San Lorenzo refused to abide by the rotation schedule established by the Water Master, and the Water Master filed a motion requesting that San Lorenzo show cause why it should not be held in contempt for failure to comply with the rotation system. The show cause hearing was set for June 29, 2004.
{5} On June 28, 2004, the day before the show cause hearing, San Lorenzo filed a petition for peremptory writ of mandamus. The petition alleges that San Lorenzo requested that the Water Master administer priorities on the Mimbres River pursuant to the final decree and its Priority Call and Demand for Water but, because the Water Master refused to perform his duties, junior upstream water users were diverting water from the Mimbres River in violation of its senior rights. The petition alleged that the maximum diversion rate for the San Lorenzo Community ditch was computed to be at least 6.7 cubic feet per second during the month of July and that San Lorenzo had already filed a petition for preliminary and permanent injunction asking the court to enjoin the upstream holders of junior priority rights from diverting any water from the Mimbres River when the flow of the river at the San Lorenzo Community Ditch Diversion was 6.7 cubic feet per second or less. Therefore, San Lorenzo requested that the court issue a peremptory writ of mandamus to the Water Master "ordering him to administer water rights by priority in times of shortage when requested to do so by water right owners or community ditches having priority to divert and use water and to curtail or terminate the diversion and use of water by junior priority water rights that take water out-of-priority."
{6} A "Peremptory Writ of Mandamus" was then issued by the district court. In pertinent part, the writ recites that San Lorenzo does not have a remedy at law and that San Lorenzo "makes a prima facie showing that the petitioner may be entitled to the relief sought by the Petition." The "Peremptory Writ of Mandamus" then simply states, "IT IS THEREFORE ORDERED that the Petition for Writ of Mandamus in the above case be and hereby is granted[,]" and that the Water Master file a response to the petition within thirty days after being served with the writ.
{7} The State Engineer filed the answer on behalf of the Water Master, which admitted and denied various allegations made in the petition for peremptory writ of mandamus. In pertinent part, the Water Master asserted that the petition should be denied because San Lorenzo had an adequate remedy at law, namely the pending petition for preliminary and permanent injunctions which San Lorenzo had failed to prosecute. Further, the Water Master disputed San Lorenzo's factual claim of a maximum diversion rate of 6.7 cubic feet per second and asserted that "reliance on a calculated maximum diversion rate alone is not dispositive of the actual rate of flow Petitioner's [sic] require to meet existing soil and crop conditions, rather it is a maximum rate when conditions so require."
{8} The district court held a hearing and issued a memorandum opinion after it "considered everything submitted on the Petition for Peremptory Writ of Mandamus, Peremptory Writ of Mandamus and the State Engineer and Water Master's Answer to the Petition." In pertinent part, the district court concluded that San Lorenzo had an injunction action pending against upstream irrigation ditches, which would in effect enforce its priority rights if it was successful. Further, the district court concluded that the Water Master and State Engineer had raised factual questions in the answer to the writ and that "[e]ffective administration will require a more detailed analysis of the entire water system, including more comprehensive measurement or estimation flows, demands, diversions and returns." The district court therefore determined that the peremptory writ of mandamus should be quashed, and an order quashing the writ was filed. San Lorenzo appeals.
{9} The issue of whether the trial court's order is appealable has not been raised by the parties. However, "an appellate court has the duty to determine whether it has jurisdiction of an appeal," therefore "it will examine the record and, if required, will sua sponte question its jurisdiction." Rice v. Gonzales, 79 N.M. 377, 378, 444 P.2d 288, 289 (1968). We conclude that the order quashing a peremptory writ of mandamus in this case is not a final, appealable order under Rule 12-201 NMRA.
{10} A mandamus proceeding is technical in nature and closely regulated by statute. See In re Grand Jury Sandoval County, 106 N.M. 764, 766, 750 P.2d 464, 466 (Ct.App.1988) (); Charles T. Dumars & Michael B. Browde, Mandamus In New Mexico, 4 N.M.L.Rev. 155, 157 (1974) (). The statutes regulating a mandamus proceeding are at NMSA 1978, Sections 44-2-1 to -14 (1884, as amended through 1953).
{11} Mandamus lies only to compel a public officer to perform an affirmative act where, on a given state of facts, the public officer has a clear legal duty to perform the act and there is no other plain, speedy, and adequate remedy in the ordinary course of the law. See West v. San Jon Bd. of Educ., 2003-NMCA-130, ¶ 9, 134 N.M. 498, 79 P.3d 842; Lovato v. City of Albuquerque, 106 N.M. 287, 289, 742 P.2d 499, 501 (1987). The writ applies only to ministerial duties and it will not lie when the...
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