The state engineer may order that a hearing be held before the state engineer 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 the state engineer's appointed examiner. Hearings shall be held in the county in which the water right at issue is adjudicated, licensed or permitted, unless the parties and the state engineer stipulate another site for the hearing. A record shall be made of all hearings. An appeal shall not be taken to the district court until the state engineer has held a hearing and entered a decision in the hearing.
History: 1953 Comp., § 75-2-15, enacted by Laws 1965, ch. 285, § 4; 1967, ch. 308, § 1; 1971, ch. 134, § 1; 1973, ch. 207, § 1; 2015, ch. 37, § 1.
ANNOTATIONSCross references. — For appeal de novo from decision, act or refusal to act of state executive officer or body in matters relating to water rights, see N.M. Const., art. XVI, § 5.
The 2015 amendment, effective June 19, 2015, required hearings held by the office of the state engineer to be held in the county in which the water right at issue is located; in the first sentence, after "before", deleted "he" and added "the state engineer"; in the third sentence, after "engineer or", deleted "his" and added "the state engineer's"; after the third sentence, added "Hearings shall be held in the county in which the water right at issue is adjudicated, licensed or permitted, unless the parties and the state engineer stipulate another site for the hearing."; and in the sixth sentence, after "hearings.", deleted "No" and added "An", after "shall", added "not", and after "entered", deleted "his" and added "a".
Scope of hearing. — Upon a pre-hearing or summary determination that water is unavailable to appropriate, the state engineer is barred from reaching any of the secondary issues when an aggrieved applicant subsequently requests a Section 72-2-16 hearing, including whether the proposed appropriation is contrary to the conservation of water or would be detrimental to the public welfare or to an objector's water right. Lion's Gate Water v. D'Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622.
A non-consumptive beneficial use of water in a fully appropriated basin. — The state engineer has the authority to determine whether a new non-consumptive use would or would not have any impact on the bailable water in a fully appropriated basin and whether it could be allowed under Section 72-5-7 NMSA 1978. A non-consumptive beneficial use piggy-backed onto a fully appropriated basin can, under certain appropriate circumstances, be a legitimate appropriation. Carangelo v. Albuquerque-Bernalillo Cnty. Water Util. Auth., 2014-NMCA-032, cert. denied, 2014-NMCERT-002.
Waiver of right to hearing. Where a community acequia filed a protest of an application to transfer water rights out of the acequia more than two years after the applicant published notice of the application; the state engineer hearing officer denied the community acequia's motion to intervene in the water rights transfer proceeding; and without a hearing, the state engineer denied the community acequia's motion for a hearing to reconsider the denial of the motion to intervene, the community acequia waived its rights to a hearing in the water rights transfer proceeding by failing to timely file a protest and was not entitled to a hearing on the denial of the community acequia's motion to intervene. Storm Ditch v. D'Antonio, 2011-NMCA-104, 150 N.M. 590, 263 P.3d 932, cert. denied, 2011-NMCERT-009, 269 P.3d 903.
The right to a comprehensive administrative hearing before the state engineer is not absolute and a defendant may waive his right to a hearing by his inaction. D'Antonio v. Garcia, 2008-NMCA-139, 145 N.M. 95, 194 P.3d 126, cert. granted, 2008-NMCERT-010, 145 N.M. 524, 201 P.3d 855.
Constitutionality. — Proviso added by 1967 amendment to this section (since rewritten), stating that section was to have no application to hearings relating to underground waters required to be held in district court, was unconstitutional as a violation of separation of powers doctrine of state constitution; nor was it validated by subsequent adoption of N.M. Const., art. XVI, § 5, relating to appeals in matters concerning water rights, since hearings contemplated by the proviso were original proceedings in district court. Fellows v. Shultz, 1970-NMSC-071, 81 N.M. 496, 469 P.2d 141.
Aggrieved party's right to a post-decision hearing. — The state engineer was required to grant property owner's request for a post-decision hearing because no pre-decision hearing had been held. Derringer v. Turney, 2001-NMCA-075, 131 N.M. 40, 33 P.3d 40, cert. denied, 131 N.M. 64 , 33 P.3d 284.
Nature of state engineer's findings. — Even though state engineer is required under legislative mandate to determine facts to which law, as set forth by legislature, is to be applied, in so doing he is nevertheless acting in an administrative capacity, and his findings are not judicial determinations. Fellows v. Shultz, 1970-NMSC-071, 81 N.M. 496, 469 P.2d 141.
Exhaustion of administrative remedies is required. — Where plaintiff, who claimed to own water rights, filed an application to change the point of diversion and place and purpose of use; the state engineer denied the application on the ground that plaintiff possessed no valid water rights to transfer; plaintiff requested an administrative hearing; and prior to the administrative hearing, plaintiff filed a petition in district court seeking a declaratory judgment to establish plaintiff's water rights, the district court properly dismissed the declaratory judgment action, because plaintiff was required to proceed with the administrative process to pursue relief from the state engineer's determination. Headen v. D'Antonio, 2011-NMCA-058, 149 N.M. 667, 253 P.3d 957.
Appeal of decision to adopt regulations. — Section 72-2-16 NMSA 1978 addresses water adjudications in the context of a specific dispute and to create a statutory right to a hearing when certain conditions are met. It does not create a right of appeal challenging the state engineer's decision to adopt active water resource management regulations. Tri-State Generation & Transmission Ass'n, Inc. v. D'Antonio, 2011-NMCA-014, 149 N.M. 386, 249 P.3d 924, cert. granted, 2011-NMCERT-002, 150 N.M. 617, 264 P.3d 129.
Stay of administrative proceeding pending declaratory judgment action did not constitute waiver of exhaustion of administrative remedies. — Where plaintiff, who claimed to own water rights, requested an administrative hearing after the state engineer determined that plaintiff possessed no valid water rights; prior to the administrative hearing, plaintiff filed a petition in district court seeking a declaratory judgment to establish plaintiff's water rights; and the state engineer stipulated that the state engineer would take no further action in the administrative proceeding until the petition for declaratory judgment had been heard and decided by the district court, the stipulation did not constitute a waiver of exhaustion of administrative remedies. Headen v. D'Antonio, 2011-NMCA-058, 149 N.M. 667, 253 P.3d 957.
State engineer's decision does not bar subsequent litigation. — While the decision of the state engineer in granting a permit has the force and effect of a judicial judgment, where the depth of an applicant's well and the diameter of the pipe and the amount of water are not in issue and not essential to a prior decision, the state engineer's determination does not bar subsequent litigation of those issues. State ex rel. Reynolds v. Rio Rancho Estates, Inc., 1981-NMSC-017, 95 N.M. 560, 624 P.2d 502.
Court erred in permitting introduction of new or additional evidence on appeal from state engineer's decision denying application for permit to change partial point of diversion. Derrick v. Reynolds, 1964-NMSC-085, 74 N.M. 181, 392 P.2d 13.
Only courts have power and authority to adjudicate water rights. State ex rel. Reynolds v. Lewis, 1973-NMSC-035, 84 N.M. 768, 508 P.2d 577.
Law reviews. — For note, "New Mexico State Engineer Issues Orders on Mine Dewatering," see 20 Nat. Resources J. 359 (1980).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Administrative Law § 294 et seq.