State Engineer v. Diamond K Bar Ranch, LLC
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In this appeal, the issue presented for the New Mexico Supreme Court's review centered on the scope of the New Mexico State Engineer’s regulatory authority over use of surface water in New Mexico when it has been diverted from the Animas River into an acequia in Colorado and accessed from that ditch by Petitioners and others in New Mexico. After review, the Court rejected petitioners’ arguments that the State Engineer lacked statutory authority over waters initially diverted outside of New Mexico and had no jurisdiction to enjoin petitioners from irrigating an area of farmland not subject to an existing adjudicated water right or a permit from the State Engineer. The Court held that the State Engineer was authorized by New Mexico law to require a permit for new, expanded, or modified use of this water and to enjoin any unlawful diversion.
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1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO 2 Opinion Number: 3 Filing Date: September 22, 2016 4 NO. S-1-SC-35446 5 STATE ENGINEER OF NEW MEXICO, 6 Plaintiff-Respondent, 7 v. 8 9 10 11 12 DIAMOND K BAR RANCH, LLC, and RAYMOND L. KYSAR, JR. and PATSY SUE KYSAR, In their capacity as Trustees of THE RAYMOND L. AND PATSY SUE KYSAR, JR. LIVING TRUST, Defendants-Petitioners. 13 ORIGINAL PROCEEDING ON CERTIORARI 14 Daylene A. Marsh, District Judge 15 Victor R. Marshall & Associates, P.C. 16 Victor Riton Marshall 17 Albuquerque, NM 18 for Petitioners 19 20 21 22 Office of the State Engineer Gregory C. Ridgley, Special Assistant Attorney General L. Christopher Lindeen, Special Assistant Attorney General Santa Fe, NM 1 Abramowitz, Franks & Olsen 2 Brett Justin Olsen, Special Assistant Attorney General 3 Fort Collins, CO 4 for Respondent 1 OPINION 2 DANIELS, Chief Justice. 3 {1} Water is both a scarce and a vital resource in New Mexico, and its responsible 4 management is crucially important to all New Mexicans. In this appeal, we address 5 the scope of the New Mexico State Engineer’s regulatory authority over use of 6 surface water in New Mexico when it has been diverted from the Animas River into 7 an acequia in Colorado and accessed from that ditch by Petitioners and others in New 8 Mexico. 9 {2} We reject Petitioners’ arguments that the State Engineer lacks statutory 10 authority over waters initially diverted outside of New Mexico and has no jurisdiction 11 to enjoin Petitioners from irrigating an area of farmland not subject to an existing 12 adjudicated water right or a permit from the State Engineer. We hold that the State 13 Engineer is authorized by New Mexico law to require a permit for new, expanded, or 14 modified use of this water and to enjoin any unlawful diversion. 15 I. FACTS AND PROCEDURAL BACKGROUND 16 The Animas River, running south from Colorado into New Mexico, is a {3} 17 tributary of the San Juan River and part of the larger Colorado River system. In Echo 18 Ditch Co. v. McDermott Ditch Company, No. 01690 (1948), the First Judicial District 19 Court of New Mexico adjudicated water rights for the San Juan River and its 1 tributaries in New Mexico, resulting in what is known as the Echo Ditch Decree. 2 Among the rights adjudicated were those rights to water for irrigation from the 3 Ralston Ditch. The Ralston Ditch diverts water from the Animas River at a headgate 4 located in Colorado approximately one and one-half miles north of the New Mexico 5 border. 6 {4} As recognized by the decree, the Ralston Ditch delivers Animas River surface 7 water to irrigate 364.2 acres of land in New Mexico. The decree details the allowable 8 purposes of water use. For each property owner with an adjudicated water right, the 9 decree also specifies the allowable quantity of annual water use and notes that “the 10 right to use of said water shall be confined to use upon the lands described” on the 11 individual ownership forms. The Echo Ditch Decree gives the State Engineer, as 12 statutory water master, exclusive authority to measure waters delivered from a main 13 diversion or distributing system, to monitor waste, and to ensure water is delivered 14 in “the respective quantities which the lands and said water users are entitled to 15 receive.” 16 {5} Petitioner Diamond K Bar Ranch, LLC (Diamond K), an asset of the Raymond 17 L. and Patsy Sue Kysar, Jr. Living Trust, and trustees Raymond L. Kysar, Jr. and 18 Patsy Sue Kysar (collectively Petitioners), own and operate a farm in San Juan 2 1 County, New Mexico. The Diamond K farm property includes a large portion of the 2 364.2 acres of land and its appurtenant water rights for the Ralston Ditch adjudicated 3 in the Echo Ditch Decree. 4 {6} The State Engineer filed a three-count complaint against Petitioners pertaining 5 to their alleged illegal use of Animas River surface water. In the second count, the 6 only count currently before this Court, the State Engineer sought to enjoin 7 Petitioners’ illegal use of Animas River surface water to irrigate additional acreage 8 that was not part of the adjudicated acreage under the Echo Ditch Decree and for 9 which Petitioners have no permit. See NMSA 1978, § 72-5-39 (1965) (“The [S]tate 10 [E]ngineer may apply for and obtain an injunction in the district court of any county 11 in which water is being diverted or the land affected is located, against any person, 12 firm or corporation who shall divert water . . . in violation of statute, or who shall 13 cause or permit the application of said water upon lands or to purposes for which no 14 valid water right exists.”). 15 {7} Petitioners filed a motion to dismiss all three counts against them, primarily 16 relying on Turley v. Furman, 1911-NMSC-030, 16 N.M. 253, 114 P. 278, to support 17 their contention that the State Engineer lacks the authority to regulate the use of 18 surface water from the Animas River for irrigation purposes when that water is 3 1 diverted in Colorado and transported into New Mexico by the Ralston Ditch. 2 {8} Petitioners further argued that Article XVI, Section 2 of the New Mexico 3 Constitution limits the State Engineer’s regulatory authority over unappropriated 4 “natural waters” flowing within New Mexico’s boundaries and that any attempt by 5 the State Engineer to exert jurisdiction over waters diverted from the Animas River 6 in Colorado, which are appropriated and brought through a “constructed” ditch for 7 beneficial use in New Mexico, violates Colorado’s right to regulate diversions in its 8 state. 9 {9} Finally, Petitioners argued that the Ralston Ditch, as a community ditch 10 constructed in the 1880s, is exempt from the permit requirements of NMSA 1978, 11 Section 72-5-1 (1941) as stated in NMSA 1978, Section 72-5-2 (1913). See § 72-5-1 12 (requiring application to the State Engineer for a permit to appropriate water); § 72-513 2 (“None of the provisions of the preceding [S]ection [72-5-1] . . . shall apply to 14 community ditches which are already constructed.”). 15 {10} The Eleventh Judicial District Court denied the motion to dismiss, concluding 16 that “the State Engineer has legal jurisdiction to enforce the [Petitioners’] adjudicated 17 water right on the Ralston Ditch notwithstanding the Ditch’s diversion point within 18 . . . Colorado.” The district court reasoned that Turley was inapplicable to the facts 4 1 of this case, stating that if there was ever a question whether Turley had any 2 application to preclude the State Engineer’s authority on the Ralston Ditch, the issue 3 was resolved by the 1948 Upper Colorado River Basin Compact codified at NMSA 4 1978, Section 72-15-26 (1949); and the court confirmed that the Echo Ditch Decree 5 explicitly recognized the exclusive regulatory authority of the State Engineer over 6 “‘waters to be delivered to any water user’ in the San Juan River Stream System, the 7 Ralston Ditch included.” See § 72-15-26 & Article XV(b) (determining the rights and 8 obligations of each of the upper basin states of Colorado, New Mexico, Utah and 9 Wyoming for the use and delivery of water of the upper basin of the Colorado River 10 and its tributaries and affirming “the right or power of any signatory state to regulate 11 within its boundaries the appropriation, use and control of water, the consumptive use 12 of which is apportioned and available to such state by th[e] [C]ompact”). 13 Nevertheless, the district court certified its ruling for interlocutory appeal on the 14 grounds that “the meaning and application of Turley . . . is a controlling question of 15 law as to which there is substantial ground for difference of opinion and an immediate 16 appeal from this order may materially advance the ultimate termination of the 17 litigation.” 18 {11} The Court of Appeals granted Petitioners’ unopposed application for an 5 1 interlocutory appeal but after full briefing by both parties decided to quash the appeal. 2 See N.M. State Engineer v. Diamond K Bar Ranch, No. 34,103, order quashing 3 interlocutory appeal, ¶¶ 8-10 (N.M. Ct. App. June 25, 2015). We granted Petitioners’ 4 unopposed petition for writ of certiorari to clarify the extent of the State Engineer’s 5 statutory authority to administer the use of Animas River surface waters when the 6 waters are diverted into an acequia in Colorado and applied to lands in New Mexico 7 in the absence of a vested water right or permit. See Davis v. Devon Energy Corp., 8 2009-NMSC-048, ¶ 11, 147 N.M. 157, 218 P.3d 75 (granting a petition for writ of 9 certiorari after the Court of Appeals denied interlocutory review). 10 II. STANDARD OF REVIEW 11 We review de novo a district court’s order granting or denying a motion to {12} 12 dismiss under Rule 1-012(B)(6) NMRA. Delfino v. Griffo, 2011-NMSC-015, ¶ 9, 150 13 N.M. 97, 257 P.3d 917. The district court’s denial of Petitioners’ motion to dismiss 14 was based on its interpretation of the regulatory authority of the State Engineer. The 15 State Engineer’s power derives from statute and is “‘limited to the . . . authority 16 expressly granted or necessarily implied by those statutes.’” Tri-State Generation & 17 Transmission Ass’n, Inc. v. D’Antonio, 2012-NMSC-039, ¶ 13, 289 P.3d 1232 18 (citation omitted). “We review questions of statutory and constitutional interpretation 6 1 de novo.” Id. ¶ 11. 2 III. DISCUSSION 3 A. 4 Relevant Constitutional, Statutory, and Administrative Framework for Surface Water Rights in New Mexico 5 Water law in New Mexico is governed by the doctrine of prior appropriation. {13} 6 Id. ¶ 40. “Under the doctrine of prior appropriation, water rights are both established 7 and exercised by beneficial use, which forms ‘the basis, the measure and the limit of 8 the right to use of the water.’” Walker v. United States, 2007-NMSC-038, ¶ 22, 142 9 N.M. 45, 162 P.3d 882 (quoting N.M. Const. art. XVI, § 3). New Mexico adopted the 10 prior appropriation doctrine rather than the common law riparian doctrine in part 11 because “‘[o]ur entire state has only enough water to supply its most urgent needs’” 12 so that “‘[i]ts utilization for maximum benefits is a requirement second to none, not 13 only for progress, but for survival.’” State ex rel. Martinez v. City of Las Vegas, 200414 NMSC-009, ¶ 34, 135 N.M. 375, 89 P.3d 47 (citation omitted). Consequently, water 15 holds a unique place within our Constitution that is distinct from other natural 16 resources. See id. 17 {14} The New Mexico Constitution broadly provides that “[t]he unappropriated 18 water of every natural stream, perennial or torrential, within the state of New Mexico, 19 is hereby declared to belong to the public and to be subject to appropriation for 7 1 beneficial use, in accordance with the laws of the state.” N.M. Const. art. XVI, § 2; 2 see also NMSA 1978, § 72-1-1 (1941) (codifying N.M. Const. art. XVI, § 2 and 3 similarly stating, “All natural waters flowing in streams and watercourses, whether 4 such be perennial, or torrential, within the limits of the state of New Mexico, belong 5 to the public and are subject to appropriation for beneficial use.”). To effect this 6 mandate, the Legislature delegated to the State Engineer the wide-ranging authority 7 to manage New Mexico’s water resources. Tri-State Generation & Transmission 8 Ass’n, Inc., 2012-NMSC-039, ¶ 34; see also Lion’s Gate Water v. D’Antonio, 20099 NMSC-057, ¶ 24, 147 N.M. 523, 226 P.3d 622 (discussing the “general purpose of 10 the water code’s grant of broad powers to the State Engineer”). 11 {15} The duties of the State Engineer include “general supervision of waters of the 12 state and of the measurement, appropriation, [and] distribution thereof and such other 13 duties as required.” NMSA 1978, § 72-2-1 (1982). “The [S]tate [E]ngineer shall . . . 14 supervis[e] . . . the apportionment of water in this state according to the licenses 15 issued by him and his predecessors and the adjudications of the courts.” NMSA 1978, 16 § 72-2-9 (1907). 17 {16} The diversion or application of water to lands in New Mexico absent a valid 18 water right or permit is unlawful. See § 72-5-39 (“No person shall divert water or 8 1 apply water to land without having a valid water right to do so, or apply it to purposes 2 for which no valid water right exists.”). Accordingly, the Legislature also gave the 3 State Engineer the authority to apply for an injunction in the district courts against 4 anyone unlawfully diverting water or applying water to land without a valid right to 5 do so. See id. 6 B. 7 The State Engineer Has Statutory Authority to Regulate the Use of Surface Waters in New Mexico Regardless of Their Diversion Location 8 Relying primarily on dicta in Turley, Petitioners argue that the State Engineer {17} 9 lacks the authority to require a permit or otherwise regulate Petitioners’ use of 10 Animas River surface waters for irrigation purposes when those waters have been 11 diverted in Colorado and transported into New Mexico by the Ralston Ditch. They 12 assert that because the Ralston Ditch is not a natural watercourse, see § 72-1-1, the 13 waters it carries become private at the point of diversion in Colorado and thereafter 14 are not part of the public waters of New Mexico subject to the State Engineer’s 15 jurisdiction. Not only is Petitioners’ interpretation of Turley erroneous, but Turley is 16 inapposite to the facts of this case. 17 {18} In Turley the Territorial Supreme Court held that the territorial engineer of 18 New Mexico lacked the authority to grant a permit for a proposed diversion from the 19 Animas River in Colorado that would have conveyed water into New Mexico via an 9 1 artificial ditch because the jurisdiction of the territorial engineer did not extend 2 beyond the territorial boundaries of New Mexico. See 1911-NMSC-030, ¶¶ 1, 4-5. As 3 the district court in this case correctly noted, Turley’s holding limiting the State 4 Engineer’s extraterritorial authority is still good law but inapplicable here. Unlike in 5 Turley, the State Engineer in this case is not seeking to exercise jurisdiction over 6 appropriation of water in Colorado or construction of a diversion in Colorado but 7 instead seeks to regulate the appropriation of surface waters in New Mexico for use 8 on New Mexico lands. 9 {19} The Territorial Supreme Court in Turley never reached the question Petitioners 10 raise. Id. ¶ 2. Instead, it determined that whether the use of waters diverted in 11 Colorado that entered New Mexico through an artificial ditch would be subject to 12 regulation in New Mexico by the New Mexico territorial engineer was a “moot 13 question” because the proposed ditch in Turley did not yet exist. See id. (“No part of 14 the waters of the Animus [sic] [R]iver has come into New Mexico except by the 15 natural channel. The proposed ditch for bringing it in exists only on paper and may 16 never have any more substantial being . . . .”). In response to this hypothetical 17 question, the Turley Court reiterated New Mexico’s law of prior appropriation stating, 18 “It is well settled that [natural waters] lose that character at the point of diversion as 10 1 soon, at least, as they are applied to beneficial use.” Id. Petitioners misapprehend this 2 statement to support their claim that once the waters of the Animas River are diverted 3 into the Ralston Ditch they become “artificial” and “private” and outside the 4 jurisdiction of the State Engineer. 5 {20} Diversion alone is not appropriation and does not create a water right. See State 6 ex rel. Martinez v. McDermett, 1995-NMCA-060, ¶¶ 12-13, 120 N.M. 327, 901 P.2d 7 745 (“[M]ere diversion of water into a canal or ditch, without applying water to 8 irrigating a crop or other valid use, does not satisfy the requirement of beneficial 9 use.”). Rather, an appropriation of water in New Mexico requires both a lawful 10 diversion of water and application of that water to a beneficial use. Snow v. Abalos, 11 1914-NMSC-022, ¶¶ 10-11, 18 N.M. 681, 140 P. 1044. It is the application to 12 beneficial use that gives an appropriator the perfected right to use the water. City of 13 Las Vegas, 2004-NMSC-009, ¶ 34. This is a limited right subject to restrictions on 14 “how [the water] may be used,” the “quantity of water” used, a “specified purpose” 15 of its use, and the “place of use.” Tri-State Generation & Transmission Ass’n, Inc., 16 2012-NMSC-039, ¶¶ 41-42 (internal quotation marks and citations omitted) (“‘[T]he 17 right to change point of diversion or place of use . . . cannot impair other existing 18 rights and it may be enjoyed only when done in accordance with statutory 11 1 procedure.’” (citation omitted)). 2 {21} The New Mexico State Engineer is charged with regulation and enforcement 3 of New Mexico water rights. NMSA 1978, § 72-2-18 (2007). In New Mexico, 4 exercising an irrigation water right by putting water to beneficial use for irrigation of 5 specified lands vests that irrigation right as appurtenant to those lands. NMSA 1978, 6 §72-1-2 (1907) (“Beneficial use shall be the basis, the measure and the limit of the 7 right to the use of water, and all waters appropriated for irrigation purposes . . . shall 8 be appurtenant to specified lands owned by the person, firm or corporation having the 9 right to use the water.”); see also Hydro Res. Corp. v. Gray, 2007-NMSC-061, ¶ 18, 10 143 N.M. 142, 173 P.3d 749 (“The legislature has decreed, as an exception to the 11 general rule [which makes water rights separate and distinct from land], that water 12 rights are appurtenant to irrigated land.” (emphasis added)). 13 {22} Petitioners’ contention that diversion and conveyance of waters “by artificial 14 means” such as a ditch renders the use of those waters private and not subject to the 15 State Engineer’s regulatory authority because they “never flow in a natural stream 16 within the boundaries of New Mexico” is entirely without merit. To support this 17 argument, Petitioners quote language from statutes and a number of cases addressing 18 artificial waters. See, e.g., NMSA 1978, § 72-5-27 (1941); Hagerman Irrigation Co. 12 1 v. E. Grand Plains Drainage Dist., 1920-NMSC-008, ¶ 15, 25 N.M. 649, 187 P. 555. 2 Artificial surface waters are “waters whose appearance or accumulation is due to 3 escape, seepage, loss, waste, drainage or percolation from constructed works.” 4 Section 72-5-27. Authorities addressing artificial waters are inapplicable here. No 5 authority holds that conveyance of waters “by artificial means” changes the source 6 or character of those waters. The waters in the Ralston Ditch are diverted directly 7 from the Animas River, a natural watercourse, and remain unappropriated natural 8 surface waters upon entry into New Mexico. 9 {23} Moreover, water is incapable of full private ownership. See Walker, 2007- 10 NMSC-038, ¶ 27 (“[W]ater rights are not considered ownership in any particular 11 water source, but rather a right to use a certain amount of water to which one has a 12 claim via beneficial use.”). For over a century, New Mexico law has provided that 13 what is owned by the water user is not the water itself but only the right to the use of 14 a certain amount of water for a specified purpose. See Snow, 1914-NMSC-022, ¶ 11 15 (“The appropriator does not acquire a right to specific water flowing in the stream, 16 but only the right to take therefrom a given quantity of water, for a specified 17 purpose.”). “All water within the state, whether above or beneath the surface of the 18 ground belongs to the state, which authorizes its use, and there is no ownership in the 13 1 corpus of the water but the use thereof may be acquired and the basis of such 2 acquisition is beneficial use.” State ex rel. Erickson v. McLean, 1957-NMSC-012, ¶ 3 23, 62 N.M. 264, 308 P.2d 983; see also Jicarilla Apache Tribe v. United States, 657 4 F.2d 1126, 1133 (10th Cir. 1981) (applying New Mexico law and affirming that “[t]he 5 state controls the use of water because it does not part with ownership; it only allows 6 a usufructuary right to water”). 7 {24} Accordingly, the Animas River waters diverted into New Mexico by the 8 Ralston Ditch remain natural, unappropriated, public waters of the State. Water is 9 transformed from unappropriated to appropriated by putting the water to beneficial 10 use, which requires an existing water right or a permit from the State Engineer. See 11 § 72-5-1; § 72-5-39. The State Engineer has jurisdiction to regulate Petitioners’ 12 application to beneficial use of Animas River surface waters diverted in Colorado to 13 the Ralston Ditch which conveys their flow to New Mexico. The regulatory role of 14 the State Engineer includes its lawful authority to require Petitioners to apply for a 15 permit to use this water where there is no existing water right. 16 C. 17 Petitioners Are Not Exempt from the Requirement to Obtain a Permit for New, Expanded, or Modified Use of Waters from the Ralston Ditch 18 Petitioners alternatively claim that the Ralston Ditch as a community ditch {25} 19 constructed in the 1880s does not require a lawful permit to divert water from it and 14 1 that Petitioners’ pre-1907 water right also exempts them as individual users of that 2 water from a permit requirement. We agree that the Ralston Ditch is an existing 3 community ditch that does not require a permit to divert water under Section 72-5-2. 4 But even for an existing community ditch, this exemption does not extend to changes 5 in the amount of water appropriated or the location of use. See § 72-1-2 (stating that 6 the rightful use of the water appropriated for irrigation purposes “shall be appurtenant 7 to specified lands”); NMSA 1978, § 73-2-63 (1912) (stating that a community 8 acequia established prior to March 19, 1907, need not apply for a permit to change 9 the place of diversion “provided that by such change no increase in the amount of 10 water appropriated shall be made beyond the amount to which the acequia was 11 formerly entitled”). It is the acequia users that hold the rights to use water, not the 12 ditch itself, which is the “carrier system” for those waters. Snow, 1914-NMSC-022, 13 ¶ 14; see also Wilson v. Denver, 1998-NMSC-016, ¶¶ 18-19, 125 N.M. 308, 961 P.2d 14 153 (distinguishing between an interest in water rights which are dependent on the 15 amount of water the individual users of the acequia water put to beneficial use and 16 an interest in ditch rights based on the contributions of the individual users of the 17 water to the construction of the ditch). The rights of users of the acequia water are 18 limited and remain subject to regulation by the State Engineer, see Tri-State 15 1 Generation and Transmission Ass’n, 2012-NMSC-039, ¶ 41-42, despite that an 2 acequia has an elected commission and mayordomo, see NMSA 1978, § 73-23 21(B)(2) (“The mayordomo . . . shall, under the direction of the commissioners, . . . 4 perform . . . duties in connection with the ditch as may be prescribed by the rules and 5 regulations of the same or as may be directed by the commissioners.” (emphasis 6 added)); § 73-2-21(A)(6) (“The commissioners shall . . . provide bylaws, rules and 7 regulations not in conflict with the laws of the state for the government of the ditch 8 or acequia.” (emphasis added)). That is, “[i]f the water rights of an acequia have been 9 adjudicated, then the State Engineer must approve any change, regardless of whether 10 or not it is a community acequia.” Honey Boy Haven, Inc. v. Roybal, 1978-NMSC11 088, ¶¶ 2-3, 6-7, 92 N.M. 603, 592 P.2d 959 (emphasis added) (reviewing disputes 12 over changes in an acequia’s point of diversion from a creek, place of use of the 13 water, and purpose of use of the water that were made without permits from the State 14 Engineer). 15 {26} It is undisputed that the waters of the Ralston Ditch were adjudicated in the 16 Echo Ditch Decree. As set forth in the decree, Petitioners hold a valid water right and 17 are not required to apply for a permit to exercise their pre-1907 water right, whether 18 or not that right had been adjudicated. See NMSA 1978, § 72-1-3 (1961) (stating that 16 1 a holder of a pre-1907 water right may file a declaration of the right); § 72-5-1 2 (requiring anyone “hereafter intending to acquire the right to the beneficial use of any 3 waters” to apply for a permit to appropriate water). Petitioners’ vested right is still 4 subject to regulation by the State Engineer. NMSA 1978, § 72-9-1 (1941) (stating that 5 the water code shall not be construed to impair existing vested rights, although such 6 rights “shall be subject to regulation, adjudication and forfeiture for nonuse as 7 provided in this article”). 8 {27} The State Engineer is attempting to enjoin Petitioners’ alleged improper use of 9 a valid water right. Petitioners are alleged to be improperly irrigating land to which 10 their valid water right is not appurtenant because it is not part of the acreage 11 adjudicated by the Echo Ditch Decree. Petitioners are also alleged to be improperly 12 using a quantity of water that exceeds the amount appropriated for use on the acreage 13 adjudicated by the Echo Ditch Decree. It is within the jurisdiction of the State 14 Engineer, and it is the regulatory responsibility of the State Engineer, to prevent any 15 such illegal use. See NMSA 1978, § 72-2-8(A) (“The [S]tate [E]ngineer may adopt 16 regulations and codes to implement and enforce any provision of any law 17 administered by [the State Engineer].”). If Petitioners wish to acquire a new water 18 right or modify their existing right to allow use of an additional quantity of irrigation 17 1 water or to allow irrigation on new land, Petitioners must obtain a permit from the 2 State Engineer for a new appropriation or for a change in the place of use of their 3 irrigation water. See § 72-5-1 (requiring an application to the State Engineer for a 4 permit to appropriate the stated amount of water); see also NMSA 1978, § 72-5-23 5 (1985) (requiring an application to the State Engineer for approval of any change of 6 place of use of water for irrigation purposes). Nothing in the permit exemptions 7 Petitioners rely on suggests that they would not need a permit to use more water from 8 the Ralston Ditch than they have a vested right to use or to use that water on land to 9 which that vested right is not appurtenant. 10 IV. CONCLUSION 11 The use of waters diverted from the Animas River in Colorado that enter New {28} 12 Mexico in the Ralston Ditch is subject to regulation by the State Engineer. The State 13 Engineer has the statutory authority to require a permit for new, expanded, or 14 modified use of this water and, when such changes are made without its approval, to 15 enjoin the illegal use. Accordingly, we affirm the district court’s denial of Petitioners’ 16 motion to dismiss and remand this case for trial on the pending claims. 18 1 {29} IT IS SO ORDERED. 2 3 __________________________________ CHARLES W. DANIELS, Chief Justice 4 WE CONCUR: 5 ___________________________________ 6 PETRA JIMENEZ MAES, Justice 7 ___________________________________ 8 EDWARD L. CHÁVEZ, Justice 9 ___________________________________ 10 BARBARA J. VIGIL, Justice 11 ___________________________________ 12 JUDITH K. NAKAMURA, Justice 19
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