When a citizen of any state contends his or her rights are impaired because a particular statute of law conflicts with or violates a federal or state constitutional provision, that citizen has the opportunity to raise that issue in the appropriate court. In New Mexico, the state constitution addresses the important issue of water use in Article XVI, Section 2 which reads, “The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.” Last year the Court in Bounds v. State ex rel. D'Antonio, 2013 NMSC 37 - NM: Supreme Court 2013, found that a statute authorizing the State Engineer to follow certain procedures in approving permits to appropriate water in the state does not violate this section of the New Mexico Constitution.
A rancher with an adjudicated right to irrigate 157.63 acres in the Mimbres basin in southwestern New Mexico, a fully appropriated and adjudicated basin, brought a challenge to the Domestic Well Statute (DWS), NMSA 1978, Section 72-12-1.1 (2003), which requires the State Engineer to issue domestic well permits without determining the availability of unappropriated water. The New Mexico Supreme Court, like the lower Court of Appeals, considered this rancher to have brought what is considered to be a “facial challenge” to the statute. In other words, the Supreme Court found that the rancher was not taking issue with how the State Engineer sought to apply the statute to his use of water. Rather the plaintiff contended the statute “on its face” violated the constitutional provision.
The Supreme Court rejected this argument finding that the constitutional provision required that the rights of those with senior priority to water shall continue to have those rights. Diversions or curtailments of water, as determined by the State Engineer, must not violate those priorities. Here the Supreme Court determined that the rancher did not show that his use of water was harmed. Nor did he show that the statutory framework impinged on the opportunity for other water users with priority – those with senior or older claims to a certain amount or percentage of water – to protect those rights. Rather the Domestic Well Statute merely set up the framework under which the State Engineer and other state authorities make decisions involving new applications to use or appropriate water from certain sources.
For advice on land use or farming matters before making any purchase or transaction, contact the attorneys at Giddens & Gatton Law, P.C. Giddens & Gatton Law, P.C. is located at 10400 Academy Road N.E., Suite 350 in Albuquerque, New Mexico. Call the office at (505) 633-6298 to set up an appointment or visit the firm’s website at giddenslaw.com should you have any questions concerning the use of any land for farming or other purposes.