wrd response - motions to dismiss (4/15/11)

8/7/2019 WRD Response - Motions to Dismiss (4/15/11)

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BEFORE THE NEW MEXICO STATE ENGINEER

IN THE MATTER OF THE APPLICATION BY )

AUGUSTIN PLAINS RANCH, LLC FOR ) Hearing No. 09-096

PERMIT TO APPROPRIATE ) OSE File No. RG-89943UNDERGROUNDWATER IN THE RIO GRANDE )

BASIN OF NEW MEXICO )

WATER RIGHTS DIVISION RESPONSE TO MOTIONS TO DISMISS

The Water Rights Division (WRD) of the Office of the State Engineer (OSE) hereby

responds to the Motions to Dismiss filed by or joined by various Protestants, seeking dismissal of

amended Application No. RG-89943 (Application).

SUMMARY OF APPLICATION

On October 12, 2007, Augustin Plains Ranch, LLC (Applicant) filed an application for

permit to appropriate underground water in the Rio Grande Underground Water Basin, which

Application was amended on May 5, 2008. The Application as amended provides the following:

Section 1: name and contact information for the Applicant;

Section 2: location by township, range and section and by longitude and latitudecoordinates for each of the proposed 37 wells;

Section 3: approximate depth of 3,000 feet, casing diameters and yield for each of the

proposed wells;Section 4: quantity of water to be appropriated in the amount of 54,000 acre feet per year;

Section 5: purpose of use including irrigation, municipal, industrial, commercial,

environmental, recreational, subdivision and related, and replacement and augmentation;

Section: 6: place of use including township, range and section descriptions for 4440 acres(broken into 120 acre increments surrounding the well locations) within the boundaries of

the Augustin Plains Ranch for irrigation purposes; and any areas within Catron, Sierra,

Socorro, Valencia, Bernalillo, Sandoval, and Santa Fe Counties that are situated withinthe geographic boundaries of the Rio Grande Basin in New Mexico.

Section 7: an additional statement that the purpose of the amended Application is to

provide water by pipeline to supplement or offset the effects of existing uses and for newuses in the areas designated in Attachment B, in order to reduce the current stress on the

water supply of the Rio Grande Basin in New Mexico. Any impairment of existing

rights, in the Gila-San Francisco Basin, the Rio Grande Basin, or any other basin, thatwould be cause by the pumping applied for, will be offset or replaced.


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Notices for publication incorporated the above information contained in the Application as

amended. Notice of the Application was published in the counties listed within the Application.

SUMMARY OF MOTIONS TO DISMISS

Protestants Abbe Springs Homeowners Association et al., represented by the New

Mexico Environmental Law Center (referred to collectively as NMELC) moved to dismiss the

Application because the Application is too vague, identifies no particular beneficial use, and is

not specific enough with regard to the place of use. NMELC argues that because the Application

is so broad and because other critical information is missing, the State Engineer will not be able

determine the impacts, if any, of the proposed uses on existing water rights, or whether granting

the Application will be contrary to the conservation of water or detrimental to public welfare.

NMELC argue that the Application cannot be approved without denying procedural due process

rights to existing water rights owners due to the lack of specificity; and the Application is not for

the purpose of beneficial use of water but rather to monopolize a water supply for speculative

purposes.

Protestant Middle Rio Grande Conservancy District (MRGDC) moves for dismissal of

the Application on the grounds that the Application and related public notices fail to specify the

particular place of use, which results in a due process issue regarding the adequacy of notice.

MRGDC also argues that the proposed places and purposes of use are speculative, and the basin

from which water will be appropriated is not identified, and therefore the Application and notices

fail to meet statutory requirements to provide adequate information to those potentially affected

by the proposed new uses of water.

Protestants Luna and Cuchillo Ditches join in the Motions to Dismiss and further argue

that the initial order docketing the Application should be reversed for lack of jurisdiction because


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the request to docket was premature. The Ditches request that the Application be dismissed

immediately to protect due process rights of Protestants and to dispel any cloud on land or water

rights titles that may occur as a result of the Application; and that a future Application be

required to meet legal requirements established in Berrendo, LLC, Order Denying Applications

entered February 8, 2010.

Water rights claimants Ron Shortes et al. (Shortes) argue that the purpose of the

Application to assist the State of New Mexico with meeting interstate water compact obligations

is beyond the power of the Applicant and not authorized by law. Shortes further argues that

there has been no adjudication of Augustin Plains water basin rights, which is a prerequisite to

action on the Application.

RESPONSE OF WRD

The motions to dismiss the Application generally allege that the Application on its face is

speculative, overly broad or vague, and do not allow for sufficient notice to water rights owners

that may be affected by the granting of the Application. Applications for new uses of

groundwater are governed by NMSA 1978, Section 72-12-3 (2001). The Application should not

be dismissed if it meets the statutory requirements for filing of an application. By statute, an

applicant must designate the following information in the OSE prescribed form: (1) the particular

underground stream, channel, artesian basin, reservoir or lake from which water will be

appropriated; (2) the beneficial use to which the water will be applied; (3) the location of the

proposed well; (4) the name of the owner of the land on which the well will be located; (5) the

amount of water applied for; (6) the place of the use for which the water is desired; and (7) if the

use is for irrigation, the description of the land to be irrigated and the name of the owner of the

land, or proof of permission to use the land if the land owner is not the applicant. Section 72-12-


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3(A) and (B). The state engineer is required to cause notice of the application to be published in

the county where the well will be located and in each county where the water will be or has been

put to beneficial use or where other water rights may be affected. Section 72-12-3(C).

The Water Code gives the State Engineer authority to grant the application and issue a

permit to the applicant to appropriate all or a part of the waters applied for, subject to the rights

of all prior appropriators from the source. Section 72-12-3(E). Further, if the state engineer is of

the opinion that the permit should not be issued, he may deny the application with or without a

hearing. Section 72-12-3(F). Therefore, the State Engineer has the ability to dismiss or deny

some or all of the Application prior to a hearing on the merits, to the extent he finds that the

Application does not provide the information to be designated in accordance with the statute or

he is of the opinion the permit should not be issued in whole or in part.

Adequacy of Application and Notice

The Application contains the statutory information to be designated by an applicant for at

least of portion of the requested new appropriation. In particular, the Applicant complies with

the requirements of Section 72-12-3(A) with regard to its request to appropriate water for

irrigation purposes. Because the Application contains the information required with regard to the

requested irrigation use, that portion of the Application should not be dismissed or denied

without a hearing on the merits.

The remainder of the Application requests a permit to appropriate water for the following

additional purposes of providing water by pipeline to supplement or offset the effects of existing

uses and for new uses includingmunicipal, industrial, commercial, environmental, recreational,

subdivision and related, and replacement and augmentation. The places of use are identified as

any areas within Catron, Sierra, Socorro, Valencia, Bernalillo, Sandoval, and Santa Fe Counties


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that are situated within the geographic boundaries of the Rio Grande Basin in New Mexico.

The issue is whether this description is sufficient to move forward to a hearing on the merits. It

is within the State Engineers sole discretion to determine whether a hearing should be conducted

prior to taking action on the remainder of the Application. The State Engineer recently

dismissed an Application in Hearing No. 09-086 et al., Consolidated ( In the Matter of the

Applications by Berrendo, LLC, et al., For Permit to Change Place and Purpose of Use of

Groundwater in the Fort Sumner Underground Water Basin in the State of New Mexico ), on the

grounds that it is contrary to sound public policy to consider an application that lacks specificity

of purpose of the use of water or specificity as to the actual end-user of the water, or to consider

or approve applications that are so vague and overbroad that the effects of granting them cannot

be reasonable evaluated (See Order Denying Applications, February 8, 2011, Paragraphs 14, 18).

As with theBerrendo Applications, this Application requests almost all possible uses of

water without identifying a purpose of use at any one location (with the exception of irrigation).

Without additional information, it would be extremely difficult to fully evaluate whether the

proposed appropriation would impair existing rights, be contrary to the conservation of water or

be detrimental to the public welfare of the state. Because the State Engineer found no part of the

Berrendo Applications to be sufficient, the Applications were denied without prejudice to filing

of subsequent applications. In this instance, a significant portion of the Application contains

sufficient information to proceed to a hearing on the merits. In exercising his discretion, the

State Engineer should therefore consider whether it is appropriate to proceed to a hearing on all

aspects of the Application, rather than dismissing a portion of the Application that could then be

refilled and that would then require an additional investment of resources by interested parties in

another proceeding.


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Due Process Considerations

The adequacy of notice in this case does not implicate due process violations for

Protestants. Due process provides that water rights holders are entitled to notice and an

opportunity to be heard. Eldorado at Santa Fe, Inc. v. Cook, 113 N.M. 33, 36, 822 P.2d 672, 675

(Ct. App. 1991), cert. denied,113 N.M. 1, 820 P.2d 435 (1991). In that case, the appellate court

held the notice to be deficient because it misidentified the location of the well, which provided

misleading information about the matter to be heard. In this instance the notice broadly informed

claimants of a new use that could impact existing rights, resulting in over 900 protests from

throughout the affected areas identified in the Application.

In the administrative context, the fundamental requirements of due process are reasonable

notice and an opportunity to be heard and to present claims or defenses. See Albuquerque

Bernalillo County Water Util. v. New Mexico Pub. Regulation Commn, 2010-NMSC-13, 21,

148 N.M. 21, 32, 229 P.3d 494, 505 (citing Jones v. N.M. State Racing Comm'n, 100 N.M. 434,

436, 671 P.2d 1145, 1147 (1983)). The Court reiterated that notice must be reasonably

calculated to apprise interested persons of the pending matter, depending on the practicalities and

peculiarities of the case; where the general issues to be heard are raised in the notice, it is

unlikely to be found procedurally inadequate or misleading. Id. at 21-25 (citing U S West

Commc'ns, Inc., 1999 NMSC 16, 29, 127 N.M. 254, 980 P.2d 37; Santa Fe Exploration Co. v.

Oil Conservation Comm'n, 114 N.M. 103, 111, 835 P.2d 819, 827 (1992)). The broad nature of

the notice in this case was reasonably calculated to apprise interested persons throughout the

named counties that a potential new water use could affect their existing rights and could raise

issues regarding conservation and public welfare.
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Finally, there is no requirement that an underground water basin or stream system be

adjudicated prior to the State Engineer taking action on an application to appropriate water. Nor

has a factual record been established that would allow the State Engineer to rule on whether the

purpose of the Application is to assist the State of New Mexico with meeting interstate water

compact obligations and whether such a purpose is beyond the power of the Applicant as a

matter of law. Any decision to dismiss or deny the Application should not be based on these

assertions.

CONCLUSION

The Application meets the statutory requirements of Section 72-12-3(A) with regard to

irrigation. The question of whether the remaining portion of the Application is so overly broad

or vague as to warrant dismissal or denial without prejudice is within the State Engineers sole

discretion to determine under Section 72-12-3. Section 72-12-3 also provides the State Engineer

with authority to grant some or all of an Application, subject to such conditions as are reasonable

and appropriate, after hearing. WRD recommends that the State Engineer proceed to hearing on

the requested irrigation appropriation. WRD makes no recommendation whether the remainder

of the Application should proceed to hearing, but recommends that the State Engineer consider

whether the information contained in the Application provides greater specificity as to purposes

and places of use than was contained in the Berrendo Application; and further consider whether

the resources of the State Engineer and parties are best utilized in light of the potential for

additional proceedings if a portion of the Application is set for hearing and the remainder of the

Application is denied or dismissed without hearing.


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Respectfully Submitted,

___________________________Jonathan E. Sperber

Office of the State Engineer

P.O. Box 25102Santa Fe, NM 87504-5702

(505) 827-6147

Stacey J. GoodwinOn behalf of Office of the State Engineer

Law Offices of Randall W. Childress, P.C.

300 Galisteo Street, Ste 205

Santa Fe, NM 87501(505) 982-4147

Attorneys for Water Rights Division

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wrd response - motions to dismiss (4/15/11)

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