NM Stat § 72-7-1 (2021)
2021 New Mexico Statutes|Chapter 72 - Water Law|Article 7 - Appeals from State Engineer|Section 72-7-1 - Appeal to district court; procedure.

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 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 is [in] 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. History: Laws 1907, ch. 49, § 63; Code 1915, § 5721; Laws 1923, ch. 28, § 1; C.S. 1929, § 151-173; 1941 Comp., § 77-601; 1953 Comp., § 75-6-1; Laws 1971, ch. 134, § 2. ANNOTATIONSBracketed material. — The bracketed material was inserted by the compiler and is not part of the law. Cross references. — For constitutional provision providing for appeal de novo, as in cases originally docketed in district courts, in matters relating to water rights, see N.M. Const., art. XVI, § 5. For publication of legal notice, see 14-11-1 NMSA 1978. For rule relating to service of process, see Rule 1-004 NMRA. For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA. For state engineer, see 72-2-1 NMSA 1978. For scope of review of the district court, see Zamora v. Vill. of Ruidoso Downs, 120 N.M. 778, 907 P.2d 182 (1995). Standard of review. — In appeals from the state engineer to the district court, the district court is limited to a de novo review of the issues decided by the state engineer. When the state engineer makes a summary determination that water is not available for appropriation, the district court is limited to review of the issue of whether water is available for appropriation, but when the state engineer determines that water is available for appropriation, the district court must consider each constituent issue of a water rights application. Lion's Gate Water v. D'Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622. Where the state engineer determined that no unappropriated water was available for the applicant and rejected the applicant's application for a permit to appropriate water, the district court erred in determining that the district court had jurisdiction to hear all matters either presented to or which might have been presented to the state engineer. Lion's Gate Water v. D'Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622. Service of decision upon parties. — The state engineer is not required to serve a copy of his decision sustaining or denying a protest against an application for water use upon a party of record, where a copy of the decision has been sent by certified mail to a party's attorney of record. Garbagni v. Metro. Inv., Inc., 1990-NMCA-070, 110 N.M. 436, 796 P.2d 1132. "Decision, act or refusal to act". — Form letter sent by state engineer to all applicants for permits to appropriate water, indicating intention to deny the applications, did not constitute an appealable "decision, act or refusal to act," where it was clear that final action on the application depended on further study by the engineer. State ex rel. Bliss v. Alexander, 1955-NMSC-061, 59 N.M. 478, 286 P.2d 322. No formal application to district court is required in taking an appeal from decision of state engineer; appeal is taken simply by serving state engineer and interested parties with notice of appeal, filing notice with proof of service and paying required docket fee. Plummer v. Johnson, 1956-NMSC-077, 61 N.M. 423, 301 P.2d 529. Service on state engineer. — Notice of appeal is served upon state engineer when it is delivered to such official and filed in his office. Orosco v. Gonzales, 1914-NMSC-038, 19 N.M. 130, 141 P. 617 (decided under prior law). Service by publication. — Paragraph C permits service by publication as a means of obtaining service on the state engineer. El Dorado Utils., Inc. v. Galisteo Domestic Water Users Ass'n, 1995-NMCA-059, 120 N.M. 165, 899 P.2d 608. On appeal from an adverse decision in a proceeding before the state engineer, since the corporation published the notice in compliance with Subsection C, it was not required to serve the attorney general pursuant to Section 38-1-17 NMSA 1978 and Rule 1-004 NMRA, and the district court thus had jurisdiction. El Dorado Utils., Inc. v. Galisteo Domestic Water Users Ass'n, 1995-NMCA-059, 120 N.M. 165, 899 P.2d 608. Service by publication must be complete prior to the expiration of the thirty-day period. Anthony Water & San. Dist. v. Turney, 2002-NMCA-095, 132 N.M. 683, 54 P.3d 87, cert. denied, 132 N.M. 674, 54 P.3d 78 (2002). State engineer as party to appeal. — On appeals under this section, state engineer is proper, if not indispensable, party, because he is given general supervision over measurement, appropriation and use of public waters and any decisions entered by district court are binding upon him. City of Albuquerque v. Reynolds, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73; see also, Plummer v. Johnson, 1956-NMSC-077, 61 N.M. 423, 301 P.2d 529. State engineer may properly be called to testify in de novo proceedings under this section; his expertise should ordinarily be made available to fact finder in appeals from his orders. Fort Sumner Irrigation Dist. v. Carlsbad Irrigation Dist., 1974-NMSC-082, 87 N.M. 149, 530 P.2d 943. Burden of proof. — Applicant has burden of proving that granting its application would not impair existing rights of others. In re City of Roswell, 1974-NMSC-044, 86 N.M. 249, 522 P.2d 796. Authority of court. — When state engineer denies application for change of point of diversion the district court has authority and jurisdiction to determine whether state engineer correctly applied the law. Clements v. Carlsbad Irrigation Dist., 1964-NMSC-168, 74 N.M. 373, 394 P.2d 139. Independent claim for relief. — An appellant under this section with an independent claim for relief under Rule 1-008 NMRA, could also pursue that claim under the court's original jurisdiction. Town of Silver City v. Scartaccini, 2006-NMCA-009, 138 N.M. 813, 126 P.3d 1177. Conditional approval. — State engineer initially, and district court on the appeal de novo, had authority to approve appellant's application subject to conditions necessary to prevent impairment of existing rights. In re City of Roswell, 1974-NMSC-044, 86 N.M. 249, 522 P.2d 796. Courts not limited. — No limitations have been placed by law upon power of district courts in these appeals to find facts, make conclusions of law and enter such judgments, orders and decrees as are proper to dispose of the issues. Fort Sumner Irrigation Dist. v. Carlsbad Irrigation Dist., 1974-NMSC-082, 87 N.M. 149, 530 P.2d 943. Rendering of court's judgment. — In proceedings under this section, district court had no duty to conclude one way or the other as to whether state engineer acted fraudulently, arbitrarily or capriciously in rendering his decision, since these were not issues in the de novo proceedings; court could and should have recited substance of its judgment, rather than merely affirming findings and decision of the engineer. However, neither of these facts deprived appellant of a trial de novo. Fort Sumner Irrigation Dist. v. Carlsbad Irrigation Dist., 1974-NMSC-082, 87 N.M. 149, 530 P.2d 943. Conservancy district not entitled to court appeal. — Conservancy district, having failed to meet the jurisdictional requirements of its appeal from the decision of the state engineer, was not entitled to have its appeal issues, challenging the decision of the state engineer, heard in district court. Hope Cmty. Ditch Ass'n v. N.M. State Eng'r, 2005-NMCA-002, 136 N.M. 761, 105 P.3d 314, cert. denied, 2004-NMCERT-012, 136 N.M. 665, 103 P.3d 1097. De novo proceedings adequate. — Where irrigation district appealed state engineer's findings and order approving transfer of certain water storage rights, and at trial in district court evidence adduced at hearing before engineer was considered along with all additional relevant evidence desired by parties, so that no party was in any way foreclosed or limited in presentation of evidence, proceedings conformed to trial de novo mandated by N.M. Const., art. XVI, § 5 and Subsection E of this section. Fort Sumner Irrigation Dist. v. Carlsbad Irrigation Dist., 1974-NMSC-082, 87 N.M. 149, 530 P.2d 943. There is no requirement of finality in appealing under this section. Angel Fire Corp. v. C.S. Cattle Co., 1981-NMSC-095, 96 N.M. 651, 634 P.2d 202. Service of notice of appeal on parties required. — A party dissatisfied with a decision of the state engineer who wishes to appeal to the district court must serve a notice of appeal upon all interested parties within 30 days. Service upon the parties' counsel will not suffice. Angel Fire Corp. v. C.S. Cattle Co., 1981-NMSC-095, 96 N.M. 651, 634 P.2d 202. When a protestant timely served notice of appeal upon the state engineer, but the record was devoid of any evidence indicating that timely service of the notice of appeal was obtained upon applicant, the trial court properly dismissed the appeal. Garbagni v. Metro. Inv., Inc., 1990-NMCA-070, 110 N.M. 436, 796 P.2d 1132. The theory behind the jurisdictional nature of the requirement of properly serving all parties to a de novo appeal from the state engineer is that the legislature has, by statute, set forth the steps necessary to transfer the authority over a case from an administrative agency to the judicial branch. Hope Cmty. Ditch Ass'n v. N.M. State Eng'r, 2005-NMCA-002, 136 N.M. 761, 105 P.3d 314, cert. denied, 2004-NMCERT-012, 136 N.M. 665, 103 P.3d 1097. Costs taxed against the state engineer. — The plain meaning of 72-7-1(D) NMSA 1978 allows district courts to tax costs in the same way and against anyone subject to a cost award in cases brought in the district court. The natural meaning of the language used in Subsection D is to assign the taxation of costs against the party who loses the appeal, regardless of the party's identity, and therefore the district court did not act outside its authority in taxing applicant's costs against the state engineer. Santa Fe Water Res. All. v. D'Antonio, 2016-NMCA-035, cert. denied. Former limitations on court review. — Prior to November 1967, adoption of N.M. Const., art. XVI, § 5 and 1971 amendment of this section, district court, in reviewing a decision of the state engineer, could not hear new or additional evidence, review by the court being limited to questions of law and restricted to whether, based upon legal evidence produced at the hearing before the state engineer, he had acted fraudulently, arbitrarily or capriciously, whether his action was substantially supported by the evidence and whether his action was within the scope of his authority or was based upon an error of law. Kelley v. Carlsbad Irrigation Dist., 1963-NMSC-049, 71 N.M. 464, 379 P.2d 763, appeal following remand, 1966-NMSC-121, 76 N.M. 466, 415 P.2d 849; see also, Durand v. Reynolds, 1965-NMSC-118, 75 N.M. 497, 406 P.2d 817; McGee v. State ex rel. Reynolds, 1963-NMSC-055, 72 N.M. 48, 380 P.2d 195; Cross v. Erickson, 1963-NMSC-061, 72 N.M. 73, 380 P.2d 520; Ingram v. Malone Farms, Inc., 1963-NMSC-108, 72 N.M. 256, 382 P.2d 981 (decided under prior law). Court retains jurisdiction despite untimely filing of proof of service. — District court has subject matter jurisdiction, under this section, to hear an appeal de novo from an administrative decision of the state engineer, where service of the notice of appeal was timely and properly served but proof of service was not filed in a timely manner. Sleeper v. Ensenada Land & Water Ass'n, 1984-NMCA-084, 101 N.M. 579, 686 P.2d 269. Retention of jurisdiction improper. — District court's attempt following a remand to the state engineer to retain jurisdiction to hear a subsequent appeal from the engineer's reconsideration of the issuance of a permit for a well location change exceeded the court's jurisdiction in view of the statutory requirements for appeal from the decision of the state engineer. Eldorado at Santa Fe, Inc. v. Cook, 1991-NMCA-117, 113 N.M. 33, 822 P.2d 672, cert. denied, 113 N.M. 1, 820 P.2d 435. Engineer not required to act. — Where city owned absolute and unconditional right to divert and use water for which it made appropriation applications, there was nothing before state engineer requiring action on his part. City of Albuquerque v. Reynolds, 1962-NMSC-173, 71 N.M. 428, 379 P.2d 73. No continuing jurisdiction. — Water adjudication statutes do not provide for reservation or exercise of continuing jurisdiction after decree adjudicating waters has been entered. 1939 Op. Att'y Gen. No. 39-3285. Law reviews. — For comment on Cont'l Oil Co. v. Oil Conservation Comm'n, 70 N.M. 310, 373 P.2d 809 (1962), see 3 Nat. Resources J. 178 (1963). For comment on Kelley v. Carlsbad Irrigation Dist., 71 N.M. 464, 379 P.2d 763 (1963), see 3 Nat. Resources J. 340 (1963). For article, "An Administrative Procedure Act For New Mexico," see 8 Nat. Resources J. 114 (1968). For note, "New Mexico State Engineer Issues Orders on Mine Dewatering," see 20 Nat. Resources J. 359 (1980). For note, "Ninth Circuit Rules That Disclaimer States Lack Jurisdiction Over Indian Water Rights Under the McCarran Amendment," see 23 Nat. Resources J. 255 (1983). Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Administrative Law § 415 et seq. 93 C.J.S. Waters § 204.