Pena Blanca Partnership v. San Jose Comm.

• Decision Date: 20 October 2008
• Docket Number: No. 28,005.,28,005.
• Parties: PEÑA BLANCA PARTNERSHIP, Appellant-Appellee, v. SAN JOSE De Hernandez COMMUNITY DITCH a/k/a San Antonio del Guache, Gerald Winsemius, Joseph Salazar, and Arturo A. Martinez, Appellees-Appellants, consolidated with Richard Cook, Appellant-Appellee, v. La Acequia Del Gavilan, Jerry Gonzales, Craig Borner, and Tim Vierick, Commissioners, Appellees-Appellants.
• Court: Court of Appeals of New Mexico

202 P.3d 814

2009 NMCA 016

PEÑA BLANCA PARTNERSHIP, Appellant-Appellee, v. SAN JOSE De Hernandez COMMUNITY DITCH a/k/a San Antonio del Guache, Gerald Winsemius, Joseph Salazar, and Arturo A. Martinez, Appellees-Appellants, consolidated with Richard Cook, Appellant-Appellee, v. La Acequia Del Gavilan, Jerry Gonzales, Craig Borner, and Tim Vierick, Commissioners, Appellees-Appellants.

No. 28,005.

Court of Appeals of New Mexico.

October 20, 2008.

Certiorari Denied, No. 31,412, January 12, 2009.

Stein & Brockmann, P.A., Jay F. Stein, Kimberly M. Bannerman, Santa Fe, NM, for Appellees.

Holland & Hart, LLP, Kristina Martinez, Santa Fe, NM, New Mexico Legal Aid, Inc., David Benavides, Ryan Golton, Santa Fe, NM, for Appellant San Jose de Hernandez Community Ditch.

Humphrey & Odé, P.C., Mary E. Humphrey, Connie Odé, El Prado, NM, for Appellant La Acequia del Gavilan.

G. Emlen Hall, Peter Thomas White, Santa Fe, NM, for Amicus Curiae New Mexico Acequia Commission.

OPINION

KENNEDY, Judge.

{1} This interlocutory appeal requires the Court to decide whether NMSA 1978, Section 73-2-21(E) (2003), regarding the standard of review in an appeal to the district court from a decision by the commissioners of an acequia, violates either article XVI, section 5 or the equal protection clause of article II, section 18 of the New Mexico Constitution. As we conclude that the statute violates neither constitutional provision, we reverse the district court's contrary decision and remand for further proceedings under the appropriate statutory standard of review.

BACKGROUND

{2} This case involves appeals to the district court from decisions by the commissioners of two different acequias (Acequias) denying the requests of water rights owners (Owners) to change the use of their water right. In one of the cases, the commissioners of the San Jose de Hernandez Community Ditch denied Peña Blanca Partnership's application to transfer to a subdivision for residential use certain water rights that were once appurtenant to agricultural property served by the Acequia. In the other case, the commissioners of the Acequia del Gavilan denied Richard Cook's application to transfer water rights that were once appurtenant to ten acres of land served by the Acequia to a pond in order to offset evaporative losses from the pond.

{3} Under New Mexico law, the Acequia commissioners were authorized to reject each Owner's proposal to change the use of the Owner's water rights "only if the commissioners determine[d] that [the change] would be detrimental to the acequia . . . or its members." Section 73-2-21(E). In each case, the commissioners denied the request to change the use of the water rights because such a transfer would (1) lead to absentee owners, less participation in the necessary maintenance of the ditch, and increased burdens on the local Acequia members; (2) divert water from its traditional uses for irrigation to other uses; (3) leave less water for irrigation of crops, which would therefore affect the local culture; (4) impact subsurface water; and (5) result in less water for other members of the Acequia, among other reasons.

{4} Owners appealed the decisions of the Acequia commissioners to the district court pursuant to Section 73-2-21, which states that if the party proposing the change in use of the water rights

is aggrieved by the decision of the commissioners, he may appeal the decision in the district court of the county in which the acequia or community ditch is located within thirty days of the date of the decision. The court may set aside, reverse or remand the decision if it determines that the commissioners acted fraudulently, arbitrarily or capriciously, or that they did not act in accordance with law.

Section 73-2-21(E).

{5} The district court consolidated the cases prior to reaching the merits of whether the commissioners in either case acted fraudulently, arbitrarily, capriciously, or not in accordance with law by finding that the proposed change would be detrimental to either acequia or its members. A hearing was held on the issue of whether the deferential standard of review set out in Section 73-2-21(E) conflicted with either article XVI, section 5 or the equal protection clause of article II, section 18 of the New Mexico Constitution. The district court concluded that the deferential standard of review was unconstitutional on its face and certified its order to this Court for interlocutory appeal. This Court granted Acequias' unopposed application for an interlocutory appeal.

SCOPE OF THIS COURT'S REVIEW OF AN INTERLOCUTORY ORDER

{6} The parties disagree about the issues to be decided in this appeal. Acequias contend that this Court should address only those issues directly addressed in the order that was certified for interlocutory appeal. Owners argue that this Court should address any issues that were raised, even if they are not expressly included in the interlocutory order. We agree with Acequias that the only issues this Court should consider are those that come within the scope of the interlocutory order.

{7} Because an interlocutory appeal is a limited exception to this Court's general rules prohibiting piecemeal appeals, this Court has generally construed the exception narrowly and refrained from deciding issues that did not form the basis of the order actually appealed from. See, e.g., Bell v. Estate of Bell, 2008-NMCA-045, ¶ 9, 143 N.M. 716, 181 P.3d 708 (declining to address a claim that was not specifically certified for interlocutory appeal and that did not form the basis of the district court's order), cert. granted, 2008-NMCERT-004, 144 N.M. 48, 183 P.3d 933. Although this Court is not constrained by the particular questions a district court certifies for appeal, we do limit the scope of our review to the issues fairly contained in the order. See Ellis v. Cigna Prop. & Cas. Cos., 2007-NMCA-123, ¶¶ 12-14, 142 N.M. 497, 167 P.3d 945 (dismissing an interlocutory appeal as improvidently granted when the issue argued by the appellant was not addressed on the merits by the district court's order), cert. denied, 2007-NMCERT-009, 142 N.M. 715, 169 P.3d 408; see also Armijo v. Wal-Mart Stores, Inc., 2007-NMCA-120, ¶ 19, 142 N.M. 557, 168 P.3d 129 (stating that on appeal from an interlocutory order, an appellate court can decide issues other than those certified, and reviewing several legal determinations that were not stated in the questions certified but that were encompassed by the district court's interlocutory order), cert. denied, 2007-NMCERT-009, 142 N.M. 715, 169 P.3d 408; cf. Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 204-05, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996) (stating that under the federal statute governing interlocutory appeals, a federal appellate court has jurisdiction over "any issue fairly included within the certified order" and that although the appellate court is not limited to the particular questions certified by the district court, it "may not reach beyond the certified order to address other orders made in the case").

{8} Here, the district court's order included two determinations: First, that Section 73-2-21(E) violates article XVI, section 5 of the New Mexico Constitution, which affords owners of water rights a constitutional right to a de novo hearing in the district court on appeal from a decision by an administrative body regarding a change in the use of water rights. And second, that the deferential Section 73-2-21(E) standard of review is unconstitutional on its face as violative of equal protection principles, since owners of water rights that are not subject to the authority of an acequia's commissioners are entitled to a de novo hearing in the district court after a decision by the State Engineer. See NMSA 1978, § 72-7-1(A), (E) (1971) (allowing an applicant to the State Engineer for a change in the use of water rights to appeal an adverse decision to the district court and providing for a de novo appeal "as cases originally docketed in the district court"). In accordance with a preference to have trial courts decide issues in the first instance, see, e.g., State v. Gutierrez, 116 N.M. 431, 435 n. 7, 863 P.2d 1052, 1056 n. 7, we decline to address the additional arguments raised by Owners regarding substantive due process, procedural due process, vagueness, and their takings claim. These arguments, if properly addressed below, can be raised in an appeal after a final decision in the district court.

APPLICABILITY OF ARTICLE XVI, SECTION 5 OF THE NEW MEXICO CONSTITUTION

{9} Owners argue that article XVI, section 5 of the New Mexico Constitution affords them a constitutional right to a de novo hearing in the district court on appeal from the decision of the Acequia commissioners. That provision states that "[i]n any appeal to the district court from the decision, act or refusal to act of any state executive officer or body in matters relating to water rights, the proceeding upon appeal shall be de novo as cases originally docketed in the district court unless otherwise provided by law." N.M. Const. art. XVI, § 5. We review de novo the interpretation of this constitutional provision. See State v. Isaac M., 2001-NMCA-088, ¶ 4, 131 N.M. 235, 34 P.3d 624.

{10} The parties marshal various principles of statutory construction to debate whether acequias are "bodies" within the meaning of this section. Acequias claim that a proper reading of article XVI, section 5 indicates that it only applies to "state executive bodies" and that it therefore does not apply to acequias, which are bodies corporate, given their existence and powers by statute, and hence are not part of the executive branch. See NMSA 1978, § 73-2-11 (1903) (stating that "[a]ll community ditches or acequias shall . . . be considered as corporations or bodies corporate, with power to sue or to be sued as such"). Owners claim that the section clearly refers to all "state bodies," a category that...