Office of State Engineer v. Lewis

• Decision Date: 16 November 2006
• Docket Number: No. 25,522.,25,522.
• Citation: 150 P.3d 375,2007 NMCA 008
• Parties: STATE of New Mexico ex rel. OFFICE OF the STATE ENGINEER and Pecos Valley Artesian Conservancy District, Plaintiffs-Appellees, v. L.T. LEWIS et al., Defendants-Appellants, and United States of America and Carlsbad Irrigation District, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 375

150 P.3d 375

2007 NMCA 008

STATE of New Mexico ex rel. OFFICE OF the STATE ENGINEER and Pecos Valley Artesian Conservancy District, Plaintiffs-Appellees, v. L.T. LEWIS et al., Defendants-Appellants, and United States of America and Carlsbad Irrigation District, Defendants-Appellees.

No. 25,522.

Court of Appeals of New Mexico.

November 16, 2006.

DL Sanders, Special Assistant Attorney General, Tanya Trujillo, Special Assistant Attorney General, William S. Cassel, Special Assistant Attorney General, Office of the State Engineer, Santa Fe, NM, for Appellee State of New Mexico ex rel. State Engineer.

Hinkle, Hensley, Shanor & Martin, L.L.P., Stuart D. Shanor, Roswell, NM, Hennighausen & Olsen, L.L.P., Fred H. Hennighausen Roswell, NM, Richard A. Simms, Hailey, ID, for Appellee Pecos Valley Artesian Conservancy District.

White, Koch, Kelly & McCarthy, P.A., Paul L. Bloom, Santa Fe, NM for Appellants.

Hubert & Hernandez, P.A., Beverly J. Singleman, Las Cruces, NM for Appellee Carlsbad Irrigation District.

OPINION

SUTIN, Judge.

{1} The Pecos River, flowing from north (upstream) to south (downstream) in New Mexico and then into Texas, has challenged water experts for well over a hundred years, without meaningful resolution of the issues of rampant usage with attendant shortages.

{2} In significant part, the Pecos River issues have revolved around: (1) the competing claims of downstream, senior surface water users in the Carlsbad, New Mexico area and upstream, junior groundwater users in New Mexico's Roswell Artesian Basin; and (2) the competing claims of New Mexico users and Texas users. The present case involves the attempt by the State of New Mexico, the United States, and irrigation entities through a settlement agreement to resolve difficult long-pending water rights issues through public funding, without offending New Mexico's bedrock doctrine of prior appropriation, and without resorting to a priority call. In this case, certain downstream, senior surface water users, specifically Tracy/Eddy Trusts and Farms (Tracy/Eddy), and Hope Community Ditch Association (Hope), who are the Appellants in this appeal, seek to abort that attempt and to require the doctrine of prior appropriation to be strictly enforced through senior against junior priority enforcement in order to assure adequate water for the downstream users and additionally to assure that the upstream, junior users and not the State's taxpayers bear the burden of providing adequate water.

{3} Appellees, who are Carlsbad Irrigation District (CID), Pecos Valley Artesian Conservancy District (PVACD), and the State of New Mexico, seek ratification of a settlement agreement among themselves and the United States establishing a managed water plan for the Pecos River, which recognizes prior appropriation rights but subsumes individual interests to collective and representative bodies. We affirm the judgments in favor of Appellees, including the partial final decree that incorporates the settlement agreement.

{4} We begin with a thumbnail history of significant events in relation to the Pecos River, followed by a review of the court determination that is the subject of the appeal now before this Court. We then discuss the points raised by Appellants.

HISTORY

A. A BRIEF LOOK AT TWENTIETH CENTURY ACTIVITY

{5} Jumping over nineteenth century Pecos River water issues, we start with the point at which the United States became involved with Pecos River water concerns. See generally G. Emlen Hall, High and Dry: The Texas-New Mexico Struggle for the Pecos River (2002) [hereinafter Hall, High and Dry]; Water Resources of the Lower Pecos Region, New Mexico: Science, Policy and a Look to the Future (Peggy S. Johnson et al. eds., 2003) [hereinafter Water Resources]. Following the 1904 Pecos River flood, the newly created United States Reclamation Service (later called the Bureau of Reclamation) became involved in a federal reclamation project located on the Pecos River called the Carlsbad Project, which consists of several dams, reservoirs, canals, and other works on the river. See Hall, High and Dry, supra, at 31, 36; see also Brantley Farms v. Carlsbad Irrigation Dist., 1998-NMCA-023, ¶26, 124 N.M. 698, 954 P.2d 763. The Bureau of Reclamation owns the reservoirs and other works servicing water users in the Carlsbad area, and owns and administers the Carlsbad Project. Brantley Farms, 1998-NMCA-023, ¶26, 124 N.M. 698, 954 P.2d 763. At the time of our statehood in 1912, and even before then, there existed issues of protection of downstream, senior users and Texas users from upstream, junior users. See Hall, High and Dry, supra, at 42-43.

{6} From these early times forward, the quest to resolve the water issues involved several significant activities and events. In 1920, in United States v. Hope Community Ditch, Cause No. 712 (Equity) (D.N.M.1933), the United States sought a Pecos River stream system adjudication to establish downstream senior surface water rights. Entered in 1933, the final decree in the Hope Community Ditch adjudication (the Hope decree) recognized 1887 priorities for Hope farmers and for the irrigation area that included what is known as the Tracy/Eddy farmlands in the Carlsbad area. The Hope decree also recognized 25,055 water right acres in the Carlsbad Project along with a corresponding duty of water, three acre feet per year per acre. Hall, High and Dry, supra, at 41-42, 257 n.33. However, while the Hope decree recognized that downstream users had certain senior rights to surface water, the decree was problematic because it did not include claims to interrelated groundwater. See Hall, High and Dry, supra, at 41-42; cf. Cartwright v. Pub. Serv. Co. of N.M., 66 N.M. 64, 76, 343 P.2d 654, 662 (1958) (determining that the Hope decree was not res judicata with respect to entities that were not a party to the federal action), overruled on other grounds by State ex rel. Martinez v. City of Las Vegas, 2004-NMSC-009, 135 N.M. 375, 89 P.3d 47.

{7} It was during the Hope Community Ditch adjudication that Carlsbad area users organized the Carlsbad Irrigation District (the CID), which was court-approved in 1933. See Tompkins v. Carlsbad Irrigation Dist., 96 N.M. 368, 370, 630 P.2d 767, 769 (Ct.App. 1981). The CID was formed in cooperation with the Bureau of Reclamation pursuant to New Mexico law and is a "body corporate and politic." Id.; see Brantley Farms, 1998-NMCA-023, ¶¶2, 26, 124 N.M. 698, 954 P.2d 763; see also NMSA 1978, §§ 73-10-1 to -50 (1919, as amended through 2003) (providing for the creation of irrigation rights); NMSA 1978, §§ 73-13-43 to -46 (1934) (validating irrigation districts as "continued bodies corporate and politic"). The CID board of directors has broad powers to act on behalf of the CID, including authority to acquire and deal with water rights. See § 73-10-16. The CID board also has discretionary authority to make decisions on behalf of its constituent members regarding distribution and use of water supply. Id.; § 73-10-24; Brantley Farms, 1998-NMCA-023, ¶23, 124 N.M. 698, 954 P.2d 763.

{8} The CID is one of three irrigation entities established on the Pecos River. Another is the Fort Sumner Irrigation District (the FSID), which received Bureau of Reclamation funds to reconstruct a diversion dam. Like the CID, the FSID is an irrigation district cooperating with the United States. See John W. Utton, Irrigation Districts in New Mexico: A Legal Overview of Their Role and Function, in Water Resources 55, 55. The third irrigation entity is the Pecos Valley Artesian Conservancy District (the PVACD), which, like the CID and the FSID, is a political subdivision of the state. Id.; see NMSA 1978, § 73-1-11 (1931). The PVACD was formed in 1932 to conserve groundwater in the Roswell Artesian Basin, following the New Mexico Legislature's enactment in 1931 of a groundwater code aimed at conservation of artesian waters. See 1931 N.M. Laws ch. 97, § 1 (codified at NMSA 1978, § 73-1-1 (1931)); see also John W. Shomaker, How We Got Here: A Brief History of Water Development in the Pecos Basin, in Water Resources 61, 63. Groundwater development in the Roswell Artesian Basin was unregulated prior to 1931. Shomaker, supra, at 63.

{9} In 1949, after negotiations occurring over many years, an interstate compact called the Pecos River Compact (the Compact) became established law for the Pecos River in relation to the water use issues between New Mexico and Texas. 81 Cong. ch. 184, 63 Stat. 159 (1949); see Hall, High and Dry, supra, at 45-48, 66, 77. The Compact was ratified and adopted in 1949 by the New Mexico Legislature. See NMSA 1978, § 72-15-19 (1949) (setting out the Compact). Among other provisions, the Compact required New Mexico to make up for under-deliveries of water to Texas. See § 72-15-19 art. III(a) ("New Mexico shall not deplete by man's activities the flow of the Pecos river at the New Mexico-Texas state line below an amount which will give to Texas a quantity of water equivalent to that available to Texas under the 1947 condition."); Hall, High and Dry, supra, at 49. Water shortages continued despite the existence and purposes of the irrigation districts and the authority of New Mexico's State Engineer, and despite the obligations placed on New Mexico under the Compact.

{10} In 1974, because New Mexico did not fulfill its Compact obligations, Texas sued New Mexico to enforce the Compact. Texas' lawsuit against New Mexico was finally decided by the United States Supreme Court in an amended decree (the amended decree) entered in 1988. Texas v. New Mexico, 485 U.S. 388, 108 S.Ct. 1201, 99 L.Ed.2d 450 (1988) (per curiam); see Hall, High and Dry, supra, at 51, 72-73, 193; John E. Thorson, The U.S. Supreme Court in an Original Jurisdiction Action: Texas v. New Mexico, No. 65 Orig. (Pecos River), in Water Resources 47, 47-48. The amended decree added significant stress to New Mexico's continual Pecos River water...