1

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMCA-014

Filing Date: August 31, 2007 

Docket No. 30,797

TRI-STATE GENERATION AND

TRANSMISSION ASSOCIATION, INC., and

NEW MEXICO MINING ASSOCIATION,

Petitioners-Appellees,

v.

JOHN D’ANTONIO, JR., STATE

ENGINEER OF NEW MEXICO,

Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF SOCORRO COUNTY

Mathew G. Reynolds, District Judge

Rodey, Dickason, Sloan, Akin & Robb, P.A.

Sunny J. Nixon

James P. Bieg

Edward Ricco

Santa Fe, NM

for Appellee Tri-State Generation and Transmission

Rodey, Dickason, Sloan, Akin & Robb, P.A.

Mark K. Adams

Santa Fe, NM

for Appellee New Mexico Mining Association

Gary K. King, Attorney General

Stephen R. Farris, Assistant Attorney General

Frances C. Bassett, Assistant Attorney General

Santa Fe, NM

New Mexico Office of the State Engineer
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DL Sanders, Special Assistant Attorney General

Santa Fe, NM

Sutin, Thayer & Browne

Paul Bardacke, Special Assistant Attorney General

Peter S. Kierst, Special Assistant Attorney General

C. Shannon Bacon, Special Assistant Attorney General

Albuquerque, NM

for Appellant

OPINION

PICKARD, Judge.

{1} Respondent, the New Mexico State Engineer (State Engineer), seeks to appeal the

district court’s order reversing portions of the State Engineer’s Active Water Resource

Management (AWRM) regulations on the basis that some of the regulations are

unconstitutional. At issue is whether the State Engineer should have sought review by our

Court by filing a petition for writ of certiorari or by filing a notice of appeal. We take this

opportunity to discuss the proper procedure for seeking review of the State Engineer’s

adoption of regulations, and we hold that the State Engineer’s filing of a notice of appeal is

both appropriate and timely.

BACKGROUND

{2} In 2003, the legislature enacted NMSA 1978, § 72-2-9.1 (2003), which states that

the adjudication process is slow, the need for water administration is urgent,

compliance with interstate compacts is imperative and the state engineer has

authority to administer water allocations in accordance with the water right

priorities recorded with or declared or otherwise available to the state

engineer.

Section 72-2-9.1(A). The statutory provision further provides that “[t]he state engineer shall

adopt rules for priority administration to ensure that authority is exercised.” Section 72-2-

9.1(B).

{3} Relying on Section 72-2-9.1, the State Engineer drafted regulations for the

management and regulation of water and made the regulations available for public comment.

See NMSA 1978, § 72-2-8 (1967) (addressing the State Engineer’s authority to promulgate

regulations). Many comments in opposition were received in writing, at a public hearing,

and in private meetings. In response to the comments, the State Engineer revised some of

the regulations. The revised AWRM regulations were adopted as final regulations in
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December 2004.

{4} Following the enactment of the AWRM regulations, Petitioners filed a Rule 1-075

NMRA petition for writ of certiorari in district court. The parties agreed below that the

proceedings were Rule 1-075 proceedings and the district court conducted its review

pursuant to Rule 1-075.

{5} The district court subsequently ruled partially in Petitioners’ favor and reversed

portions of the regulations on the basis that some of the provisions were unconstitutional.

The State Engineer did not file a petition for writ of certiorari within twenty days of the

district court’s order, as required by Rule 12-505(C) NMRA. Instead, the State Engineer

filed a notice of appeal twenty-nine days after the district court’s order. On the same day,

the State Engineer filed a “Motion for Extension of Time and the Determination of the

Applicable Process for an Appeal by the New Mexico State Engineer in this Case.” That

motion is the matter currently before this Court.

DISCUSSION

{6} In its motion, the State Engineer requests both an extension of time to file a petition

for writ of certiorari, if necessary, and a clarification from our Court regarding the proper

process for an appeal in such cases. According to the State Engineer, “[i]t is not clear

whether the proper avenue for the Petitioners’ challenge was an administrative appeal under

Rule 1-075, or whether the Petitioners should have availed themselves of their statutory right

of appeal under NMSA 1978, § 72-7-1(A) (1971).” The State Engineer expresses confusion

over whether review by this Court should be obtained by petition for writ of certiorari or by

filing a notice of appeal.

{7} In response, Petitioners argue that the State Engineer is seeking to excuse its failure

to file a petition for writ of certiorari within twenty days of the district court’s final order “by

feigning ignorance and ambiguity about the status of the proceedings in this case,” when it

was clear to all the parties involved that Rule 1-075 was applicable. Petitioners further assert

that because “the State Engineer failed to comply with the simple and unambiguous

provisions of Rule 12-505, . . . the State Engineer’s request for extension of time to file his

petition should be denied and the tardy appeal should be dismissed.”

{8} We take this opportunity to address the proper procedure for appealing the adoption

of rules and/or regulations by the State Engineer. Additionally, we address whether

dismissal is mandated if Petitioners sought review of the State Engineer’s actions in an

incorrect manner. Lastly, we address the effect of the State Engineer’s acquiescence to the

application of Rule 1-075 to the proceedings.

Rule 1-075

{9} Rule 1-075 is one of the “two rules of civil procedure governing district court review

of administrative decisions or orders.” Dixon v. State Taxation & Revenue Dep’t, 2004-

NMCA-044, ¶ 2, 135 N.M. 431, 89 P.3d 680; see Rule 1-074(A) NMRA (governing review
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from agency decisions where “there is a statutory right of review to the district court”). Rule

1-075 “governs writs of certiorari to administrative officers and agencies pursuant to the

New Mexico Constitution when there is no statutory right to an appeal or other statutory

right of review.” Rule 1-075(A). Under this rule, a party aggrieved by a final decision or

order of an agency may seek district court review of the decision or order by filing a petition

for writ of certiorari in the district court within thirty days of the agency action. Rule 1-

075(B), (D). After issuing the writ of certiorari, 

[t]he district court may enter an order reversing the decision of the agency if

it finds that:

(1) the agency acted fraudulently, arbitrarily or

capriciously;

(2) based upon the whole record on review, the decision

of the agency is not supported by substantial evidence;

(3) the action of the agency was outside the scope of

authority of the agency; or

(4) the action of the agency was otherwise not in

accordance with law.

Rule 1-075(Q). A party then wishing appellate review of the decision of the district court

must file a petition for writ of certiorari “within twenty (20) days after entry of the final

action by the district court.” Rule 12-505(C); see Paule v. Bd. of County Comm’rs, 2005-

NMSC-021, ¶ 14, 138 N.M. 82, 117 P.3d 240 (“A party aggrieved by the district court’s

order in an administrative appeal may seek review of the decision by filing a petition for writ

of certiorari with the Court of Appeals.”).

{10} In the present case, Petitioners invoked the appellate jurisdiction of the district court

by filing a petition for writ of certiorari pursuant to Rule 1-075 within thirty days of the State

Engineer’s order adopting the AWRM regulations. If, as Petitioners maintain, Rule 1-075

was indeed the proper avenue to challenge the AWRM regulations, the State Engineer

needed to file a petition for writ of certiorari within twenty days of the district court’s order

ruling portions of the regulations unconstitutional. See Rule 12-505(C); Paule, 2005-

NMSC-021, ¶ 14; Dixon, 2004-NMCA-044, ¶¶ 3-8. We conclude that Rule 1-075 was not

the proper means by which to challenge the State Engineer’s adoption of the AWRM

regulations.

{11} While Rule 1-075 governs district court review of agency decisions or orders where

there is no statutory right to an appeal, as Petitioners maintain in the present case, we

question whether the rule governs review of State Engineer decisions or orders involving

water rights. Notably, the New Mexico Constitution provides 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 (emphasis added). Conversely, Rule 1-075 does not provide for de novo review,

but instead employs a scope of review that is analogous to the standard of review typically

employed by this Court in reviewing decisions by administrative agencies. See Rule 1-
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075(Q); see also Clayton v. Farmington City Council, 120 N.M. 448, 453, 902 P.2d 1051,

1056 (Ct. App. 1995) (“When reviewing most administrative decisions, the district court and

appellate court examination is limited to assessing, in light of the whole record, whether the

agency acted arbitrarily or capriciously, whether the agency decision was supported by

substantial evidence, and whether the agency acted within the scope of its authority.”).

{12} The fact that Rule 1-075 prescribes an entirely different scope of review than is

mandated in cases involving water rights leads this Court to conclude that Rule 1-075 is

likely not an appropriate means by which to obtain review of a decision or order of the State

Engineer. Cf. Anthony Water & Sanitation Dist. v. Turney, 2002-NMCA-095, ¶ 8, 132 N.M.

683, 54 P.3d 87 (observing that “Rule 1-074 contemplates an appellate review proceeding

in the district court whereas appeals from the State Engineer are constitutionally required to

be tried de novo”). Interestingly, Petitioners do not explain or otherwise address this

apparent conflict between Rule 1-075 and article XVI, section 5 in any of their filings in this

Court except to say that the constitution does not create any right of review, which appears

to us to be beside the point. As previously recognized by our Court, “Rule 1-075(A) governs

but does not itself create a right to obtain a constitutional writ of certiorari to an

administrative entity when there is no statutory right to an appeal or other statutory right of

review.” Moriarty Mun. Sch. v. N.M. Pub. Sch. Ins. Auth., 2001-NMCA-096, ¶ 34, 131

N.M. 180, 34 P.3d 124 (emphasis added) (internal quotation marks and citation omitted).

Notably, “[t]he constitutional grant of appellate jurisdiction in all cases originating in

inferior courts and tribunals does not apply or preempt original jurisdiction . . . when no

quasi-judicial, adjudicatory proceeding precedes the decision of the administrative board.”

Id. ¶ 35. In the present case, there is no dispute that the State Engineer was acting in a rule

making capacity as opposed to a quasi-judicial capacity. We therefore agree with the State

Engineer’s assertion that Petitioners should not have sought review of the AWRM

regulations pursuant to Rule 1-075.

Section 72-7-1

{13} The State Engineer argues that Section 72-7-1 provides a statutory right to appeal and

that Petitioners should have pursued their appeal under that statutory provision. Under

Section 72-7-1, review of the district court’s decision by our Court is obtained by filing a

notice of appeal, as opposed to a petition for writ of certiorari. Town of Silver City v.

Scartaccini, 2006-NMCA-009, ¶ 7, 138 N.M. 813, 126 P.3d 1177. Although we agree that

Section 72-7-1 does create a statutory right to appeal actions taken by the State Engineer

under certain circumstances, we do not believe that such circumstances are present in the

instant case.

{14} Section 72-7-1 provides that:

A. Any applicant or other party dissatisfied with any decision, act

or refusal to act of the state engineer may appeal to the district court of the

county in which the work or point of desired appropriation is situated.

B. Appeals to the district court shall be taken by serving a notice
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of appeal upon the state engineer and all parties interested within thirty days

after receipt by certified mail of notice of the decision, act or refusal to act.

If an appeal is not timely taken, the action of the state engineer is conclusive.

C. The notice of appeal may be served in the same manner as a

summons in civil actions brought before the district court or by publication

i[n] some newspaper printed in the county or water district in which the work

or point of desired appropriation is situated, once a week for four consecutive

weeks. The last publication shall be at least twenty days prior to the date the

appeal may be heard. Proof of service of the notice of appeal shall be made

in the same manner as in actions brought in the district court and shall be

filed in the district court within thirty days after service is complete. At the

time of filing the proof of service and upon payment by the appellant of the

civil docket fee, the clerk of the district court shall docket the appeal.

D. Costs shall be taxed in the same manner as in cases brought

in the district court and bond for costs may be required upon proper

application.

E. The proceeding upon appeal shall be de novo as cases

originally docketed in the district court. Evidence taken in a hearing before

the state engineer may be considered as original evidence subject to legal

objection, the same as if the evidence was originally offered in the district

court. The court shall allow all amendments which may be necessary in

furtherance of justice and may submit any question of fact arising therein to

a jury or to one or more referees at its discretion.

According to NMSA 1978, § 72-7-3 (1923), the parties are then bound by the decision of the

district court unless an appeal is taken to our Court. “[A]ppeals under Section 72-7-3 are

governed by Rule 12-201 [NMRA] rather than Rule 12-505,” meaning that a party aggrieved

by the district court’s decision may appeal by filing a notice of appeal within thirty days of

the district court’s final order. Scartaccini, 2006-NMCA-009, ¶ 7.

{15} Initially, we recognize that the phrase “any decision, act or refusal to act” in Section

72-7-1(A) does appear to encompass the rule making action taken by the State Engineer in

the present case. As previously recognized by our courts, the word “decision” includes

administrative rule making. Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo County

Air Quality Control Bd., 80 N.M. 633, 639-40, 459 P.2d 159, 165-66 (Ct. App. 1969) (noting

that “decision” is defined as “a determination arrived at after consideration, an opinion

formed, or a course of action decided upon” and holding that “it embraces regulations

adopted by a board and filed with the Supreme Court Law Librarian” (internal quotation

marks and citation omitted)). At first glance, therefore, it appears that Section 72-7-1 does

provide a statutory right to appeal from the State Engineer’s order adopting the AWRM

regulations.

{16} More problematic, however, are the references in Section 72-7-1(A) to “applicant or
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other party” and “work or point of desired appropriation.” Such references seem to indicate

that Section 72-7-1 was intended to apply to the State Engineer decisions involving

appropriations and applications for permits, i.e., specific water rights disputes, rather than

to administrative rule making.

{17} Similarly, we observe that language within Section 72-7-1(B) also indicates that the

statute was likely not intended to apply to administrative rule making. Section 72-7-1(B)

provides that parties aggrieved by a decision of the State Engineer must serve a notice of

appeal within thirty days “after receipt by certified mail of notice of the decision, act or

refusal to act.” Notably, in the present case, the State Engineer did not mail his order

adopting the AWRM regulations upon any interested parties. Indeed, as observed by

Petitioners, “interested parties” in the AWRM regulations “could conceivably include all

citizens or residents of the state.” As such, we believe that the statute was intended to cover

specific disputes regarding water rights, not the adoption of rules and/or regulations. We

therefore disagree with the State Engineer’s assertion that Petitioners should have appealed

the order adopting the AWRM regulations by filing a notice of appeal pursuant to Section

72-7-1.

NMSA 1978, § 72-2-16 (1973)

{18} The State Engineer also argues that Section 72-2-16 also provides a statutory right

to appeal. Section 72-2-16 provides that:

The state engineer may order that a hearing be held before he enters

a decision, acts or refuses to act. If, without holding a hearing, the state

engineer enters a decision, acts or refuses to act, any person aggrieved by the

decision, act or refusal to act, is entitled to a hearing, if a request for a

hearing is made in writing within thirty days after receipt by certified mail

of notice of the decision, act or refusal to act. Hearings shall be held before

the state engineer or his appointed examiner. A record shall be made of all

hearings. No appeal shall be taken to the district court until the state engineer

has held a hearing and entered his decision in the hearing.

We disagree with the State Engineer’s assertion that the above section provides a right to

appeal under the circumstances of this case.

{19} We understand Section 72-2-16 to address water adjudications in the context of a

specific dispute and also to create a statutory right to a hearing when certain conditions are

met. See Derringer v. Turney, 2001-NMCA-075, ¶ 12, 131 N.M. 40, 33 P.3d 40.

Additionally, we observe that Section 72-2-16 requires that individuals aggrieved by a

“decision, act or refusal to act” by the State Engineer exhaust his or her administrative

remedies prior to appeal by seeking a hearing. See Derringer, 2001-NMCA-075, ¶ 14. We

note that the State Engineer does not explain how this section creates a right of appeal other

than to merely quote its language. We therefore conclude that Section 72-2-16 is not

applicable in the present case.
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Declaratory Judgment

{20} Having concluded that neither Rule 1-075 nor the various statutory provisions cited

by the State Engineer provide adequate bases for appeal from the adoption of the AWRM

regulations, we now must decide how the State Engineer’s actions in the present case should

have been challenged by Petitioners. We conclude that Petitioners should have challenged

the AWRM regulations by filing a complaint for declaratory judgment with the district court.

{21} The Declaratory Judgment Act, NMSA 1978, §§ 44-6-1 to -15 (1975), provides that

the state of New Mexico, or any official thereof, may be sued and declaratory

judgment entered when the rights, status or other legal relations of the parties

call for a construction of the constitution of the state of New Mexico, the

constitution of the United States or any of the laws of the state of New

Mexico or the United States, or any statute thereof.

Section 44-6-13. We observe that declaratory actions have been used on multiple occasions

in New Mexico to challenge administrative agency rule making. See, e.g., New Mexico

Right to Choose/NARAL v. Johnson, 1999-NMSC-005, ¶¶ 2, 23, 126 N.M. 788, 975 P.2d 841

(involving suit under Declaratory Judgment Act challenging the Human Services

Department’s adoption of a rule “prohibiting state funding for certain medically necessary

abortions”); Howell v. Heim, 118 N.M. 500, 502, 882 P.2d 541, 543 (1994) (involving suit

for declaratory and injunctive relief regarding the Human Services Department’s adoption

of a regulation imposing a limitation on receipt of general assistance benefits); Munroe v.

Wall, 66 N.M. 15, 16, 340 P.2d 1069, 1069 (1959) (involving suit under Declaratory

Judgment Act challenging the legality of a public hospital’s regulations); Johnson v. Francke,

105 N.M. 564, 565, 734 P.2d 804, 805 (Ct. App. 1987) (involving declaratory action against

Secretary of Corrections challenging the validity of rules and regulations governing conduct

and discipline of prisoners). Unlike proceedings under Rule 1-075, the district court’s final

order under the Declaratory Judgment Act is appealed by filing a notice of appeal within

thirty days of the court’s decision. See Rule 12-201(A)(2).

{22} Where, as here, there does not appear to be any statutory right to appeal and that

other avenues for review, i.e., Rule 1-075, seem equally foreclosed, an action for declaratory

judgment may be the only means by which Petitioners could have challenged the State

Engineer’s actions. Cf. City of Albuquerque v. Ryon, 106 N.M. 600, 603, 747 P.2d 246, 249

(1987) (“[D]eclaratory judgment actions are not intended to provide a substitute for other

available actions.”); Grand Lodge of Ancient & Accepted Masons of N.M. v. State Taxation

& Revenue Dep’t, 106 N.M. 179, 181, 740 P.2d 1163, 1165 (Ct. App. 1987) (“Actions for

declaratory judgment were not intended as a substitute for statutory judicial review of

administrative action.”). We therefore hold that, under the current state of statutory law and

court rules, the proper avenue by which to challenge rule making affecting water rights by

the State Engineer is to invoke the original jurisdiction of the court by filing a complaint for

declaratory judgment.

Effect of Petitioners’ Failure to Bring the Action as a Complaint for Declaratory
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Judgment

{23} The State Engineer asserts that if Petitioners could not seek review of the AWRM

regulations by invoking the appellate jurisdiction of the district court under Rule 1-075 or

by a statutory right to appeal, “[t]he appeal should be dismissed, and the district court’s

decision and judgment should be vacated as void ab initio.” Although we agree that

Petitioners incorrectly sought review of the regulations under Rule 1-075, we do not agree

that this error mandates that the appeal be dismissed and the district court’s judgment be

vacated.

{24} We observe that “[t]he district courts of this State have broad jurisdiction—legal and

equitable, original and appellate.” State ex rel. State Highway & Transp. Dep’t v. City of

Sunland Park, 2000-NMCA-044, ¶ 10, 129 N.M. 151, 3 P.3d 128. District courts have

original jurisdiction to hear claims for declaratory judgment. See § 44-6-2 (“[D]istrict courts

within their respective jurisdictions shall have power to declare rights, status and other legal

relations whether or not further relief is or could be claimed.”). Moreover, the court’s

original jurisdiction may be exercised at the same time as its appellate jurisdiction. See

Maso v. State Taxation & Revenue Dep’t, 2004-NMCA-025, ¶ 17, 135 N.M. 152, 85 P.3d

276 (“[T]he district court can simultaneously exercise its appellate and original

jurisdiction.”), aff’d, 2004-NMSC-028, 136 N.M. 161, 96 P.3d 286. Thus, although

Petitioners invoked the appellate jurisdiction of the district court by filing a petition for writ

of certiorari under Rule 1-075, the district court was not foreclosed from also exercising its

original jurisdiction.

{25} Our decision in Maso is instructive on this issue. In Maso, the appellant’s driver’s

license was revoked as a result of driving while intoxicated. 2004-NMCA-025, ¶ 4. The

appellant failed to request a revocation hearing in a timely manner and, as such, the Motor

Vehicles Division (MVD) denied his request for a hearing. Id. ¶¶ 4-5. The appellant then

appealed to the district court under Rule 1-074(A) (which governs appeals from agency

actions when there is a statutory right of review), arguing that the denial of a revocation

hearing deprived him of his due process rights. Maso, 2004-NMCA-025, ¶ 6. After the

district court rejected the appellant’s argument, he petitioned our Court for writ of certiorari.

Id.

{26} On appeal, our Court held that the appellant’s due process arguments “must be

considered in the first instance by the district court pursuant to its original jurisdiction”

because such claims were beyond the scope of the MVD revocation hearing. Id. ¶ 2. We

observed that although “the district court’s opinion purports to exercise appellate jurisdiction

pursuant to Rule 1-074(Q) . . . it is clear from the substance of the six-page opinion that the

district court fully considered the parties’ arguments . . . unconstrained by the statutory limits

on appellate review.” Maso, 2004-NMCA-025, ¶ 15. Thus, although the district court was

purportedly operating under its appellate jurisdiction, we nonetheless construed “the opinion

and order as properly issuing pursuant to the district court’s original jurisdiction” in the

interest of judicial economy. Id. ¶¶ 2, 15.

{27} As in Maso, we construe the district court’s judgment and order below as issuing
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pursuant to the court’s original jurisdiction. We observe that although the parties and district

court acknowledged the appellate scope of review described in Rule 1-075(Q), a review of

the court’s memorandum decision indicates that it did not base its decision on any factual

findings, but ruled instead that the AWRM regulations were unconstitutional as a matter of

law. Thus, it does not appear that the district court was constrained by “statutory limits on

appellate review.” See Maso, 2004-NMCA-025, ¶ 15. 

{28} Additionally, we do not believe that construing Petitioners’ claims in such a manner

is prejudicial to the State Engineer. We note that the State Engineer did not question the

manner in which the proceedings were brought below. Moreover, neither party argues that

the issues were not fully briefed or argued below. As such, in the interest of judicial

economy, we believe that Petitioners’ challenge to the AWRM regulations should be treated

as an action for declaratory judgment and that the district court’s decision should therefore

be treated as arising from its original jurisdiction. As such, the State Engineer’s notice of

appeal was both appropriate and timely. See Rule 12-201(A)(2).

The Effect of the State Engineer’s Acquiescence Below to the Rule 1-075 Proceeding

{29} In light of our conclusion that Petitioners should have challenged the State

Engineer’s actions by invoking the district court’s original jurisdiction under the Declaratory

Judgment Act, we must now consider the effect of the State Engineer’s acquiescence to the

matter proceeding under the district court’s Rule 1-075 appellate jurisdiction instead. In

doing so, we remain mindful of the fact that “an important policy . . . is to construe the Rules

of Appellate Procedure liberally so that appeals may be determined on their merits.” Capco

Acquisub, Inc. v. Greka Energy Corp., 2007-NMCA-011, ¶ 16, 140 N.M. 920, 149 P.3d

1017.

{30} Petitioners contend that because the State Engineer knew that the proceedings below

were brought pursuant to Rule 1-075 and expressly acquiesced to the procedure, the State

Engineer has waived any argument as to the applicability of Rule 1-075 to the proceedings.

We question, however, whether the parties could agree to proceed under Rule 1-075 when

the scope of review described in the rule is directly contrary to the scope of review in water

rights appeals as mandated by article XVI, section 5 of the New Mexico Constitution.

Compare Kibbe v. Elida Sch. Dist. (In re Termination of Kibbe), 2000-NMSC-006, ¶ 13, 128

N.M. 629, 996 P.2d 419 (reviewing school board decision under Rule 1-075(Q) to determine

whether it was “arbitrary or capricious, not supported by substantial evidence in the record

as a whole, or otherwise not in accordance with law”), with Anthony Water & Sanitation

Dist., 2002-NMCA-095, ¶ 8 (observing “appeals from the State Engineer are constitutionally

required to be tried de novo” pursuant to article XVI, section 5 of the New Mexico

Constitution).

{31} Moreover, while we are troubled by the State Engineer’s treatment of the case as a

Rule 1-075 proceeding until it came time to appeal, we do not believe that permitting an

appeal in this case is prejudicial to Petitioners. As previously noted, neither party argues that

the issues were not fully briefed or addressed below. Further, Petitioners do not assert that

they were prejudiced at all by the nature of the proceedings. As such, we conclude that the
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State Engineer’s notice of appeal was proper and timely. Because we hold that the notice

of appeal was proper, we deny the State Engineer’s motion for an extension of time in which

to file a petition for writ of certiorari as moot. 

CONCLUSION

{32} For the foregoing reasons, we allow the State Engineer to appeal the district court’s

final judgment and order. The State Engineer’s docketing statement shall be filed on or

before September 17, 2007.

{33} IT IS SO ORDERED.

______________________________________

LYNN PICKARD, Judge 

WE CONCUR:

______________________________________

JAMES J. WECHSLER, Judge

______________________________________

MICHAEL D. BUSTAMANTE, Judge

Topic Index for Tri-State Generation v. D’Antonio, Docket No. 30,797

AL ADMINISTRATIVE LAW AND PROCEDURE

AL-AA Administrative Appeal

AL-DU Due Process

AL-JR Judicial Review

AL-RU Rules

AL-SC Scope of Review

AL-TM Timeliness

AE APPEAL AND ERROR

AE-AJ Appellate Jurisdiction

AE-AR Appellate Review

AE-CF Certiorari

AE-NA Notice of Appeal

GV GOVERNMENT

GV-SE State Engineer

JM JUDGMENT

JM-DJ Declaratory Judgment

JD JURISDICTION
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JD-A Appellate Jurisdiction

JD-DC District Court

NR NATURAL RESOURCES

NR-WL Water Law