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New Mexico Water Law Confusion Part 1

Michael Morrisagua_chiquite_fence_sign

I suppose most of you know that something is going on in Weed Sacramento that has prompted the Otero County Commission to ask Sheriff Benny House to cut locks or whatever to open some gates on fences that USFS has placed around a water source traditionally used for cattle watering. When I get a chance I will tell that story, but for now there seems to be more incorrect information floating around than facts. This first example comes from the response of attorney A Blair Dunn who is apparently advising the county in this foolish endeavor. In response to a question in a Facebook group Dunn makes a couple of statements that do not really capture the essence, so I wanted to take the answers a little further.

The question:

Blair Dunn, in the 5/5/2014 meeting several speakers said riparian areas do not apply in the West. Can you clarify?

The answer:

 I believe there is some confusion as to the way word riparian is being used. In New Mexico as in the other 17 western states we follow the Prior Appropriations Doctrine with regard to surface water, elsewhere in the Country they often rely upon the Riparian Doctrine for surface water. The confusion becomes that the federal government has translated the terms “wetland” or “watercourse” or “streambed” into the term “riparian area.” Hence, these springs and streambeds fit their definition of a riparian area. The law is much clearer in this state though. Creating a riparian area is not a beneficial use under the New Mexico Statutes or under the case of U.S v. N.M. (1978). Beneficial use is an essential element in creating a right to use water. As such the USFS has no right to use water for riparian areas, nor could they seize such an area and deny access to an area that contains water rights already owned by private citizens without running afoul of the 5th Amendment to the United States Constitution.

OK, riparian, from a purely water rights standpoint means:

The riparian doctrine governs water rights in most eastern states, and grants landowners the right to make reasonable use of water that flows through or otherwise abuts their land.   Ownership of a water right under the riparian doctrine is in “no way affected by failure to exercise the right.” – Walker v. United States, 162 P.3d 882 (N.M. 2007)

Now I think it is possible Dunn is correct with his assertion that riparian or wildlife habitat is not really a beneficial use as NM law contemplates, but I have not yet found a case where that was tested, so for the time being all that seems to exist is NMAG Opinion 98-01 which relies heavily on other states’ laws in the west for its conclusion, but it ends like this:

New Mexico accords a high value to recreation, fish and wildlife, and ecological values associated with riparian and aquatic systems. Not only is this confirmed by numerous statutes designed to protect these values, NMSA 1978, Chapter 16 (state parks and recreation); § 17-2-37 et seq., § 17-4-1 et seq., § 17-6-1 et seq. (1995 Repl. Pamp.) (fish and wildlife); § 74-6-1 et seq. (1993 Repl. Pamp.) (water quality), but as recently as the 1997 legislative session the New Mexico legislature passed a memorial confirming its desire to preserve river ecosystems and promote the ecological, recreational, and other instream values associated with those ecosystems. – (New Mexico Attorney General Opinion 98-01)

It seems like the time has come to test that theory. I would like someone to explain to the taxpayers precisely the legal theory under which the County Commission has the standing to bring a suit that would result in the court order mentioned or the authority of the Sheriff to act or the authority to expend public funds to aid a private citizen in the matter of a private claim. Dunn seems to acknowledge the private nature of the matter when he addresses the 5th Amendment takings issue. That is why these 3 Stooges-like “attempts” seem to explode like Fudd’s gift cigar.

For those of you interested in the actual law I leave you with this small part of  Walker v. United States, 162 P.3d 882 (N.M. 2007)

1. Foundational Principles and Historical

Development of New Mexico Water Law

The prior appropriation doctrine governs water law in New Mexico.   See N.M. Const. art.   XVI, §  2 (“Priority of appropriation shall give the better right.”);  Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, ¶  5 n.3, 141 N.M. 21, 150 P.3d 971 (citing NMSA 1978, §  72-1-2 (1907)).   Under prior appropriation, “the right to use water is considered a property right which is separate and distinct from ownership of the land.”  KRM, Inc. v. Caviness,1996-NMCA-103, ¶  6, 122 N.M. 389, 925 P.2d 9);see Charles T. DuMars & A. Dan Tarlock, Symposium Introduction:  New Challenges to State Water Allocation Sovereignty, 29 Nat. Resources J. 331, 332 (1989)(noting that under prior appropriation a “water right [is] a quasi-exclusive property right (not tied to the locus of use )” (emphasis added)).   Thus, a water right is not an automatic stick in the bundle of rights a landowner receives upon purchasing even a fee interest in land.

Under the doctrine of prior appropriation, water rights are both established and exercised by beneficial use, which forms “the basis, the measure and the limit of the right to use of the water.”   N.M. Const. art.   XVI, §  3. A water right is separate and distinct from a right to adjacent land because it is derived not from the rights in the land, but “from appropriation for beneficial use.”  Olson v. H & B Props., Inc., 118 N.M. 495, 498, 882 P.2d 536, 539 (1994).   As a result of the separate and distinct nature of a water right, that right must be exercised or lost;  one cannot sit on water rights to the exclusion of any other claimant without putting them to beneficial use.   See Ira G. Clark, Water in New Mexico:  A History of Its Management and Use 39 (1987) (“Since the criterion was application of water to beneficial use, this was not a property right which could be acquired in perpetuity;  it had to be exercised to be kept alive.”).

The sole exception to the general rule that water rights are separate and distinct from the land is water used for irrigation.   See KRM, 1996-NMCA-103, ¶  8 (holding that Section 72-1-2 and NMSA 1978, §  72-5-22 (1953) “evince an intent to create a limited statutory exception to the general rule that water rights and land ownership are distinct property rights”).   Irrigation water rights are appurtenant to the land, meaning that any conveyance of the land will carry the water right with it unless the water right is expressly reserved by the grantor.   SeeNMSA 1978, §  72-1-2 (1953) (providing that “all waters appropriated for irrigation purposes … shall be appurtenant to specified lands owned by the person, firm or corporation having the right to use the water”);  §  72-5-22 (providing that “the transfer of title of land in any manner whatsoever shall carry with it all rights to the use of water appurtenant thereto for irrigationpurposes, unless previously alienated in the manner provided by law” (emphasis added));  Turner v. Bassett, 2005-NMSC-009, ¶  10, 137 N.M. 381, 111 P.3d 701 (noting that under Sections 72-1-2 and 72-5-22, “water that is applied to irrigation becomes appurtenant to the land on which it is used”).

The prior appropriation tradition, as it exists in New Mexico today, can be traced to the convergence of practices followed in northern Mexico prior to the cession in 1848 with practices developed in connection with Anglo western settlement.   See United States v. Rio Grande Dam & Irrigation Co., 9 N.M. 292, 306, 51 P. 674, 678 (1898) (stating that “[t]he law of prior appropriation existed under the Mexican republic at the time of the acquisition of New Mexico”), rev’d on other grounds by 174 U.S. 690 (1899);  Clark, supra, at 41-42 (noting that the “water institutions of New Mexico represent a fusion” of early Spanish law and custom with “the pure form of the doctrine of prior appropriation [which] stems from the California gold rush”).   The prior appropriation doctrine’s independence of water from the land, and the requirement that a water right be exercised continuously, distinguish water rights under the prior appropriation doctrine from water rights under the riparian doctrine.   See Clark, supra, at 39.   The riparian doctrine governs water rights in most eastern states, and grants landowners the right to make reasonable use of water that flows through or otherwise abuts their land.   Ownership of a water right under the riparian doctrine is in “no way affected by failure to exercise the right.”  Id. at 37.

Early Western settlers, such as those in the gold mining camps of California and the early irrigation settlements in Colorado, found the riparian doctrine unworkable in the arid West because they often had to divert water from its source in order to use it beneficially because the land associated with the use of the water did not itself contain a water source.   See A. Dan Tarlock, The Future of Prior Appropriation in the New West, 41 Nat. Resources J. 769, 770 (2001);  Clark, supra, at 37-40.   Under the traditional riparian doctrine, the new Western settlers would have had to show that their reasonable use did not interfere with those downstream.   See Clark, supra, at 37 (noting that under the riparian doctrine, the reasonable use of a water right must not significantly interfere with downstream riparian appropriators).   This riparian doctrine made sense in the eastern states where larger sources of water exist, and, therefore, not as many people had to tap into a single source resulting in less effect on downstream users.   See Norman K. Johnson & Charles T. Dumars, A Survey of the Evolution of Western Water Law in Response to Changing Economic and Public Interest Demands, 29 Nat. Resources J. 347, 348-49 (1989).   In the western states where populations were limited to fewer and smaller water sources, most uses somehow affected downstream users.   See id.

As indicated by its historical evolution in the West, a primary feature of the prior appropriation doctrine and its concomitant beneficial use requirement was the need for water to be mobile or divertible to other areas of use and not tied to the surrounding land.   See 2 Joseph W. Dellapenna, Waters and Water Rights 11.02(a), (d) (Robert E. Beck, ed., 1991 ed., 2001 Repl.Vol.)  (noting the key attributes of prior appropriation address the need in arid regions to divert and transport water in order to place it to beneficial use).   Because water is a scarce commodity in the West, mobility and transferability are necessary to meet changing social goals.   This often means moving water from one location to another and also from one use to another.   See Kaiser Steel Corp. v. W.S. Ranch Co., 81 N.M. 414, 419, 467 P.2d 986, 991 (1970) (discussing how even private parties may exercise powers of condemnation to construct facilities to transport water and put it to beneficial use such as mining);  Clark, supra, at 39 (stating that prior appropriation “had released the arid western region from restricting its scant water resources to the limits of riparian lands, making possible the diversion of those waters to areas where they could be applied more effectively”).

Water rights are therefore not tied to a particular location or even a particular source.   SeeNMSA 1978 §  72-5-23 (1985) (change of place of use);  NMSA 1978 §  72-5-24 (1985) (change of purpose);  NMSA 1978 §  72-12-7 (1985) (change of location of well for groundwater).   As such, water rights are not considered ownership in any particular water source, but rather a right to use a certain amount of water to which one has a claim via beneficial use.  See Joseph L. Sax, Rights that “Inhere in the Title Itself”:  The Impact of the Lucas Case on Western Water Law, 26 Loy. L.A. L.Rev. 943, 944 (“Water has been described as merely usufructuary;  as belonging to the public; as subject to public servitudes;  as incapable of full ownership;  as subject to constraints that it be used nonwastefully, reasonably, beneficially, etc.” (citation omitted)).   Thus, under prior appropriation, as a separate protected property right, a vested water right can be “sold, leased, or transferred.”  KRM, 1996-NMCA-103, ¶  5.

This mobility of water rights, generally not appurtenant to any specific land, informs our analysis of the Walkers’ argument in this case.   As we shall see, the Walkers would have this Court undermine years of established law by declaring such a link, or an appurtenance, between land and water in the non-irrigation context.

UNITED STATES V. RIO GRANDE DAM & IRRIGATION CO., 1898-NMSC-001, 9 N.M. 292, 51 P. 674 (S. Ct. 1898)