Santa Fe Water Res. All. v. D'Antonio
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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: _______________ 3 Filing Date: December 9, 2015 4 NO. 33,704 5 SANTA FE WATER RESOURCE 6 ALLIANCE, LLC, 7 Applicant/Appellant-Appellee, 8 v. 9 JOHN D’ANTONIO, NEW MEXICO 10 STATE ENGINEER, 11 Appellee/Appellant. 12 APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY 13 Francis J. Mathew, District Judge 14 15 16 17 Law & Resource Planning Associates Tanya L. Scott Charles T. Dumars Albuquerque, NM 18 for Applicant/Appellant-Appellee 19 20 21 22 Office of the State Engineer DL Sanders, General Counsel Gregory C. Ridgley, Special Assistant Attorney General Santa Fe, NM 23 for Appellee-Appellant 1 OPINION 2 HANISEE, Judge. 3 {1} Applicant Santa Fe Water Resource Alliance, LLC petitioned the State 4 Engineer (the Engineer) to change the point of diversion for a declared water right 5 from farmland in Socorro County to a point north of the City of Santa Fe and for a 6 change of use from agricultural to municipal. The Engineer granted the application 7 but for much less water than Applicant argued it was entitled to under the declared 8 right. Applicant appealed to the district court, and after extensive litigation, prevailed 9 in all respects. Applicant moved the district court to tax its costs against the Engineer, 10 and the district court granted Applicant’s motion. The Engineer appeals the district 11 court’s order taxing costs, arguing that (1) the district court had no statutory authority 12 to tax Applicant’s costs against the Engineer; and (2) even if the district court had 13 such authority, it abused its discretion in awarding costs in this case. 14 BACKGROUND 15 {2} In 1999, Augustine and Arlene Wagner (the Wagners) filed a declaration of 16 ownership of a pre-1907 water right. See NMSA 1978, § 72-1-3 (1961) (“Any person, 17 firm or corporation claiming to be an owner of a water right which was vested prior 18 to the passage of Chapter 49, Laws 1907, . . . may make and file in the office of the 19 state engineer a declaration . . . setting forth the beneficial use to which said water has 20 been applied, the date of first application to beneficial use, the continuity thereof, the 1 location of the source of said water and if such water has been used for irrigation 2 purposes, the description of the land upon which such water has been so used and the 3 name of the owner thereof.”). In 2001, the Engineer issued to the Wagners a permit 4 to draw the amount of their declared right from a supplemental well for irrigation 5 uses. 6 {3} Applicant purchased the Wagners’ water rights and petitioned the Engineer to 7 change the point of diversion of the Wagners’ declared right from the Wagners’ land 8 in Socorro to a point north of Santa Fe. See NMSA 1978, § 72-5-24 (1985) (stating 9 that “[a]n appropriator of water may, with the approval of the state engineer, . . . 10 change the place of diversion, storage or use in the manner and under the conditions 11 prescribed” for applications to appropriate water); see also Laura Paskus, Death by 12 a Thousand Cuts: Will Santa Fe’s Campaign to Buy Up Water Rights Kill the Rio 13 Grande?, Santa Fe Reporter, Jun e 27 , 2012, available at 14 http://www.sfreporter.com/santafe/article-6807-death-by-a-thousand-cuts.html (last 15 visited October 13, 2015) (discussing the potential environmental impact of Santa 16 Fe’s policy of purchasing declared water rights in the Middle Rio Grande Valley to 17 satisfy growing municipal demand)). Applicant also sought to change the approved 18 use of the Wagners’ right from agricultural to municipal. 19 {4} The Engineer designated a hearing examiner, see NMSA 1978, § 72-2-12 2 1 (1965), who held a two-day hearing to take evidence and address various objections 2 to Applicant’s petition. The main issue at the hearing was the validity of the Wagners’ 3 claimed right. The hearing examiner rejected Applicant’s contentions that the 4 Wagners held a right to 292.005 acre-feet per annum of water, and instead found that 5 Applicant had only demonstrated that the Wagners held a right to 61.236 acre-feet per 6 annum. Accordingly, the hearing examiner held that Applicant was entitled to change 7 the point of diversion for that quantity of water, and no more. 8 {5} Applicant appealed the Engineer’s decision to the district court. See NMSA 9 1978, § 72-7-1(A) (1971) (“Any applicant or other party dissatisfied with any 10 decision, act or refusal to act of the state engineer may appeal to the district court of 11 the county in which the work or point of desired appropriation is situated.”). The 12 district court held a bench trial in June 2013, and afterward the court issued its own 13 detailed findings of fact and conclusions of law reversing the hearing examiner’s 14 decision and granting Applicant’s petition in whole. 15 {6} Afterward, Applicant submitted a bill of costs to the clerk of the district court. 16 See Rule 1-054(D)(1) NMRA (“Except when express provision therefor is made 17 either in a statute or in these rules, costs, other than attorney fees, shall be allowed to 18 the prevailing party unless the court otherwise directs[.]”). The Engineer filed 19 objections to Applicant’s bill of costs. See Rule 1-054(D)(4) (setting out the 3 1 procedure for the prevailing party to move to tax costs and for the non-prevailing 2 party to object to a bill of costs). The district court overruled the Engineer’s 3 objections and taxed Applicant’s costs against the Engineer. The Engineer appealed 4 the district court’s order taxing costs. 5 DISCUSSION 6 Section 72-7-1(D) Gives District Courts the Authority to Tax Costs Against the 7 Engineer 8 {7} The Engineer argues that the water code does not allow district courts to tax 9 costs against the Engineer when a party appeals a decision it makes to the district 10 court and wins. The Engineer’s argument is as follows: under Rule 1-054(D), “costs 11 against the state, its officers and agencies shall be imposed only to the extent 12 permitted by law.” The Engineer contends that because Section 72-7-1(D), which 13 governs the taxation of costs in appeals from the Engineer’s office to the district 14 court, makes no express provision for the taxation of costs against the Engineer, Rule 15 1-054(D) bars district courts from awarding costs to prevailing appellants. 16 {8} As an initial matter, Applicant maintains we should decline to address this 17 argument because the Engineer failed to raise it with the district court. We agree that 18 the issue was not preserved, meaning also that the district court did not have an 19 opportunity to rule on it. See Rule 12-216(A) NMRA (“To preserve a question for 20 review it must appear that a ruling or decision by the district court was fairly 4 1 invoked[.]”). 2 {9} Despite the Engineer’s failure to preserve the issue, we will address the 3 Engineer’s argument because it raises a question of general public importance. See 4 Rule 12-216(B)(1). “[W]e have invoked the general public interest exception to the 5 preservation rule where review of the appellate issue is likely to settle a question of 6 law affecting the public at large or a great number of cases and litigants in the near 7 future.” Azar v. Prudential Ins. Co. of Am., 2003-NMCA-062, ¶ 28, 133 N.M. 669, 8 68 P.3d 909 (citing cases). In this case, whether costs may be taxed against the 9 Engineer is a pure question of law that will apply (barring legislative intervention) 10 to every appeal of the Engineer’s decisions to district court. Moreover, the issue has 11 been raised and briefed before the district court in other pending appeals from the 12 Engineer’s office. Accordingly, we address the merits of the issue raised by the 13 Engineer for the first time on appeal. 14 {10} “Our primary task in construing statutory language is to effect legislative 15 intent.” Benny v. Moberg Welding, 2007-NMCA-124, ¶ 5, 142 N.M. 501, 167 P.3d 16 949. 17 18 19 20 21 We start with the language [of the statute] itself, giving effect to its plain meaning where appropriate while being careful not to be misled by simplicity of language when the other portions of a statute call its meaning into question, or the language of a section of an act conflicts with an overall legislative purpose. 5 1 Id. (internal quotation marks and citations omitted). 2 {11} We begin with the text of Section 72-7-1(A), (D), which states that in an appeal 3 to a district court from a “decision, act or refusal to act of the state engineer . . . 4 [c]osts shall be taxed in the same manner as in cases brought in the district court and 5 bond for costs may be required upon proper application.” Id. Section 72-7-1(D) gives 6 district courts the ability to tax costs, but it does not allow or prohibit the taxation of 7 costs against the state or the Engineer. Rather, it incorporates by reference the 8 “manner” that costs are taxed in district courts generally. 9 {12} Our Supreme Court considered an analogous question of statutory construction 10 in In re Heiman’s Will, 1931-NMSC-041, 35 N.M. 522, 2 P.2d 982. In that case, a 11 probate court sustained the appellees’ claims against an estate, a ruling that the 12 executor appealed to the district court. Id. ¶ 1. The district court dismissed the appeal 13 on two grounds: “(1) [the executor’s f]ailure to issue and serve citation on the 14 claimants; [and] (2) the failure to file with the clerk of the probate court written 15 directions as to papers and records to be transmitted to the district court, pursuant to 16 the provisions of [C]hapter 99, Sess. Laws 1915, 1929 Comp. §§ 34-420 and 34-421.” 17 In re Heiman’s Will, 1931-NMSC-041, ¶ 5. 18 {13} The appellant did not challenge the district court’s conclusion that it had failed 19 to comply with Sections 34-420 and 34-421. Instead, the appellant cited 1929 Comp. 6 1 § 34-419, a section of the Kearny Code predating Sections 34-420 and 34-421, which 2 stated that “[a]ppeals from the judgment of the probate court shall be allowed to the 3 district court in the same manner, and subject to the same restriction as in case of 4 appeals from the district to the [S]upreme [C]ourt.” In re Heiman’s Will, 19315 NMSC-041, ¶ 8 (internal quotation marks and citation omitted).Our Supreme Court 6 held that the district court’s dismissal of the appeal was improper because it did not 7 follow the Supreme Court’s rules of appellate procedure, to the extent that those rules 8 did not conflict with the express terms of the statutes governing appeals from probate 9 courts. Id. ¶¶ 12-15. 10 {14} The Heiman’s Will Court adopted the following rule: when a statute 11 incorporates by reference the “law generally which governs a particular subject[,]” 12 courts must read the statute to incorporate “the law as it exists from time to time or 13 at the time the exigency arises to which the law is to be applied” to the extent that it 14 does not conflict with the express terms of other statutes governing the subject. 15 Id. ¶¶ 9-10 (internal quotation marks and citation omitted). Since a Supreme Court 16 rule requiring the Court to find prejudice to the moving party in order to justify 17 granting a motion to dismiss an appeal on non-jurisdictional grounds was in effect at 18 the time the petition for leave to appeal the probate court’s order was filed, our 19 Supreme Court held that the district court erred in granting the appellees’ motion to 7 1 dismiss without making any findings as to prejudice. Id. ¶¶ 12-13. 2 {15} In order to resolve the meaning of the phrase “manner as in cases brought in 3 the district court” in Section 72-7-1(D), then, Heiman’s Will counsels us to consult 4 statutes and other relevant court rules that would apply to cases brought in district 5 court at the time an appeal is made. NMSA 1978, Section 39-3-30 (1966) and Rule 6 1-054 govern the taxation of costs in district court. Section 39-3-30 provides in 7 relevant part: “In all civil actions or proceedings of any kind, the party prevailing 8 shall recover his costs against the other party unless the court orders otherwise for 9 good cause shown.” But Rule 1-054(D)(1) provides: 10 11 12 13 14 15 Except when express provision therefor is made either in a statute or in these rules, costs, other than attorney fees, shall be allowed to the prevailing party unless the court otherwise directs; but costs against the state, its officers and agencies shall be imposed only to the extent permitted by law. {16} In Kirby v. New Mexico State Highway Department, 1982-NMCA-014, 97 16 N.M. 692, 643 P.2d 256, the state appealed the district court’s award of costs to the 17 plaintiff, who prevailed against the state on claims arising under the Tort Claims Act, 18 NMSA 1978, Section 41-4-1 to -30 (1976, as amended through 2015). Kirby, 198219 NMCA-014, ¶ 1. In Kirby, the state made an argument indistinguishable from the one 20 the Engineer makes here: Since neither the Tort Claims Act nor Section 39-3-30 made 21 express provision for the taxation of costs against the state, Rule 1-054(D) precludes 8 1 an award of costs to the party prevailing against the state in a civil action. Kirby, 2 1982-NMCA-014, ¶ 20. 3 {17} This Court rejected the state’s argument in Kirby and read Section 39-3-30 to 4 allow district courts to tax a prevailing party’s costs against the State. First, we noted 5 that Section 39-3-30 6 7 8 9 10 11 12 13 14 15 16 17 18 originated in the Kearny Code of 1846 under the division entitled Costs, § 1. It was subsequently codified in C.L. 1865, ch. 45, § 1, and recodified, amended, compiled and recompiled over the intervening years until omitted by the compilers of the 1943 compilation of the New Mexico statutes because they felt it had been superseded by Supreme Court Rule 54(d) (now R.C.P. 54(d), N.M.S.A.1978). In Laws 1966, ch. 28, § 58, the section was amended and recompiled . . . . In expressly reinstating this statute and overriding the compiler’s assumption that Rule 54(d) (first adopted in its present form, effective August 1, 1942, pursuant to Supreme Court order of March 20, 1942) was “deemed to supersede” the forerunners of [Section] 21-10-27, the [L]egislature gave express authority, without exception, to recovery of costs against any losing party. 19 Kirby, 1982-NMCA-014, ¶ 21. We went on to hold that even though the Tort Claims 20 Act makes no express provision for the taxation of costs against the State, 21 22 23 24 25 26 we are not impressed that the [L]egislature’s silence, in that Act, is indicative of its intent to deny a successful complainant the recovery of his costs in a [t]ort [c]laims suit. In our view, the [L]egislature as easily could have expressed such a limitation, if it intended to do so, as it did in providing in the [T]ort Claims Act that no exemplary or punitive damages, or interest prior to judgment, could be included in any award. 27 28 29 We must assume that the [L]egislature was aware of existing statutory and common law, including Rule 54(d), supra, and [Section] 39-3-30, when the Tort Claims Act was passed. We must also assume 9 1 2 3 4 5 6 that the 1966 [L]egislature was familiar with the compiler’s annotation to Rule 54(d) when it deliberately returned [Section] 39-3-30 (then § 21-10-27, 1953 Comp.) to the statute books. Section 39-3-30 provides the statutory basis upon which Rule 54’s reference to costs against the [s]tate may be allowed. The trial court’s order in that respect was not error. 7 Kirby, 1982-NMCA-014, ¶¶ 22-23 (citations omitted). 8 {18} Taken together, Heiman’s Will and Kirby provide the framework for 9 understanding the plain meaning of Section 72-7-1(D). First, under Heiman’s Will, 10 Section 72-7-1(D)’s incorporation of the law that generally governs cost awards in 11 district courts requires us to apply the law governing costs in “cases brought in the 12 district court,” including Section 39-3-30. Section 72-7-1(D). Second, Kirby 13 recognizes that under Rule 1-054(D) NMRA, some express provision of law must 14 authorize the taxation of costs against the state. Because the Legislature was aware 15 of Rule 1-054 when it passed Section 39-3-30, Kirby concluded that the phrase “the 16 part[y] prevailing shall recover his costs against the other party” includes the state by 17 its plain terms. Kirby, 1982-NMCA-014, ¶ 21 (internal quotation marks and citation 18 omitted). Applying Heiman’s Will and Kirby to this case, the plain meaning of 19 Section 72-7-1(D) allows district courts to tax costs in the same way and against 20 anyone subject to a cost award in “cases brought in the district court.” Section 72-721 1(D). And since state entities are subject to cost awards in such cases under Kirby, 22 Sections 72-7-1(D) and 39-3-30 allowed the district court to tax Applicant’s costs 10 1 against the Engineer in this case. 2 {19} The Engineer argues that our interpretation of the plain meaning of Section 72- 3 7-1 cannot be squared with our Supreme Court’s statement in Lion’s Gate Water v. 4 D’Antonio, 2009-NMSC-057, 147 N.M. 523, 226 P.3d 622 that Section 72-7-1 did 5 not “give the judiciary de facto original jurisdiction over water rights applications.” 6 Lion’s Gate, 2009-NMSC-057, ¶ 30. The Engineer concludes that since Section 72-77 1 does not give district courts original jurisdiction over water rights applications, an 8 appeal from the Engineer’s decision is not a “civil action[] or proceeding[] of any 9 kind” under Section 39-3-30, but instead a special proceeding to enforce statutory 10 rights. 11 {20} Even if we assume that in Lion’s Gate our Supreme Court intended the phrase 12 “de facto original jurisdiction” to mean “actual original jurisdiction,” the Engineer’s 13 argument depends on an additional premise: that any proceeding that is not within the 14 district court’s original jurisdiction is not a “civil action[] or proceeding[] of any 15 kind” under Section 39-3-30. Id. Even if we were to assume the Engineer’s contention 16 that appeals from the Engineer’s decisions are not “civil actions or proceedings of any 17 kind” and therefore not subject to Section 39-3-30, a deeper problem remains: if 18 Section 39-3-30 does not apply to appeals of the Engineer’s decisions because they 19 are special statutory proceedings and not “civil actions or proceedings of any kind,” 11 1 how are we to interpret Section 72-7-1(D)’s reference to “the . . . manner [costs are 2 taxed] in cases brought in the district court?” (Emphasis added.) In short, the 3 Engineer’s argument renders the text of Section 72-7-1(D) superfluous. See Consol. 4 Freightways, Inc. v. Subsequent Injury Fund, 1990-NMCA-058, ¶ 15, 110 N.M. 201, 5 793 P.2d 1354 (“Courts assume that the [L]egislature will not enact useless statutes 6 or amendments.”). 7 {21} To be sure, other elements of Section 72-7-1 appear to be in tension with our 8 reading of Section 72-7-1(D). Section 72-7-1(B) states that if an appeal is not taken, 9 the Engineer’s decision “is conclusive.” And Section 72-7-1(E) refers to “[e]vidence 10 taken in a hearing before the state engineer.” Taken together, Sections 72-7-1(B) and 11 (E) suggest that the Engineer acts in the capacity of an adjudicator in deciding an 12 application to change the point of diversion of a water right, and our rules of 13 procedure do not contemplate the taxation of costs against a lower court when it is 14 reversed on appeal. The Engineer contends that it would make no sense to allow the 15 taxation of costs against the Engineer when the water code does not allow the 16 Engineer to appeal his own decisions; in every case, the applicant initiates the 17 Engineer’s review of a given water right and appeals the Engineer’s decision to the 18 district court if the applicant is dissatisfied with the Engineer’s review. 19 {22} Whatever tension our reading of Section 72-7-1(D) has with other provisions 12 1 of the water code stems not from our understanding of the plain meaning of Section 2 72-7-1(D), but from the tension between the multiple, at times conflicting, 3 responsibilities the water code imposes on the Engineer. As our Supreme Court noted 4 in Plummer v. Johnson, 1956-NMSC-077, 61 N.M. 423, 301 P.2d 529, the Engineer 5 is a “necessary, or at least a proper, party” to appeals from proceedings in his office, 6 who must defend his own decision in the district court. Id. ¶ 8 (internal quotation 7 marks and citation omitted). Thus, unlike an administrative adjudicator or trial court, 8 which does not normally advocate on behalf of its judgment when it is appealed, the 9 Legislature has tasked the Engineer with “general supervision of waters of the 10 state[,]” NMSA 1978, § 72-2-1 (1982), and “adopt[ing] rules for priority 11 administration to ensure that [his] authority is exercised” in a manner that does not 12 interfere with adjudications of water rights, impair existing rights, or cause increased 13 depletions of New Mexico’s water supply. NMSA 1978, § 72-2-9.1(B)(1)-(3) (2003). 14 {23} Importantly, the water code does not require hearings on applications to 15 appropriate water to be conducted by a neutral hearing examiner; instead, the hearing 16 examiner acts as a proxy for the Engineer, and it is the Engineer who ultimately 17 decides whether to grant an application to appropriate waters based on the hearing 18 examiner’s report. See § 72-2-12 (“The state engineer shall base his decision rendered 19 in any matter heard by an examiner upon the record made by or under the supervision 13 1 of the examiner in connection with such proceeding and the report and 2 recommendation of the examiner; and his decision shall have the same force and 3 effect as if said hearing had been conducted by the state engineer.”). 4 {24} In this role, the Engineer is more akin to a private litigant who incurs his own 5 and causes others to similarly incur costs in order to allow the district court to decide 6 a case. Section 72-7-1(D) by its terms applies to proceedings in the district court, 7 where the Engineer exercises his role as administrator of New Mexico’s waters and 8 must defend his judgment against attack. Since Section 72-7-1(D) relates to the 9 Engineer’s exercise of this duty, as opposed to his other duty as an adjudicator of 10 claims, we do not think our interpretation of Section 72-7-1(D) puts it in tension with 11 provisions of the water code relating to the Engineer’s adjudication of applications 12 concerning water rights. 13 {25} As the Engineer concedes, he vigorously opposed Applicant’s appeal. By 14 tasking the Engineer with both deciding claims and defending his own decision on 15 appeal, the Legislature must have been aware that the Engineer would cause the 16 parties against whom it litigates to incur costs and that the Engineer would incur his 17 own costs defending his decision in the district court. By making express provision 18 for the taxation of costs in Section 72-7-1(D), the Legislature allows parties to recoup 19 costs incurred in correcting an erroneous decision by the Engineer; by the same token, 14 1 it provides the Engineer with a means of recovering resources expended defending 2 the correctness of his decision on appeal. 3 {26} The purpose of the water code’s appeals process also supports our 4 interpretation of Section 72-7-1(D). Article XVI, Section 5 of the New Mexico 5 Constitution, which was adopted by referendum in 1967 and codified by the 6 Legislature in Section 72-7-1(D) in 1971, was meant to overrule our Supreme Court’s 7 holding in Kelley v. Carlsbad Irrigation Dist., 1963-NMSC-049, 71 N.M. 464, 379 8 P.2d 763, superseded by statute as stated in Lion’s Gate, 2009-NMSC-057, ¶ 21, that 9 the district court’s review on appeal of the Engineer’s decisions is deferential and 10 limited to the evidence considered by the Engineer below. Lion’s Gate, 2009-NMSC11 057, ¶ 34. Thus, while the water code provides a comprehensive administrative 12 scheme that limits the scope of a district court’s review in crucial respects, id. ¶ 36, 13 the overall intent of Article XVI, Section 5 of the State constitution and Section 72-714 1 was to make clear that the Engineer’s decision is entitled to no deference 15 whatsoever. By making express provision for the district court to take new evidence, 16 the Legislature intended Section 72-7-1 to place the Engineer in the same position as 17 the appellant; the Engineer must participate in the district court proceedings, 18 challenge the appellant’s evidence and argument, and even offer his own evidence 19 and argument in defense of his decision below. Given this purpose and the 15 1 Legislature’s express provision for taxation of costs in the same way costs are to be 2 taxed in civil actions, we infer a legislative intent to deter both unsupportable 3 decisions by the Engineer and frivolous appeals by applicants in much the same way 4 Rule 1-054 is designed to deter the bringing of frivolous claims and the imposition 5 of meritless defenses in civil actions. Given the overall purpose of the water code’s 6 appeal provisions and the purpose of cost-shifting in civil actions, the natural import 7 of Section 72-7-1(D) is to assign the taxation of costs against the party who loses the 8 appeal, regardless of the party’s identity. 9 {27} Although ancillary to our construction of Section 72-7-1(D), its legislative 10 history additionally supports our conclusion that the district courts may tax the 11 prevailing party’s costs against the Engineer. When the Legislature first adopted a 12 provision allowing taxation of costs by reference to the district court rule in 1907, 13 New Mexico district courts, as federal territorial courts, were bound by federal law. 14 See Organic Act of 1850 establishing the Territory of New Mexico, Ch. 49, § 17, 9 15 Stat. 446 (1850). At that time, the consensus in federal courts was that absent 16 government consent, the doctrine of sovereign immunity barred the taxation of costs 17 against the state. See 10 Charles A. Wright et al., Federal Practice & Procedure § 18 2672.1 (3d ed. 2015). This explains a provision in New Mexico territorial law 19 explicitly allowing the taxation of costs against the territory. See § 3, C.L. 1884, § 16 1 541 (“In all cases in which costs are adjudged against the Territory or any county, 2 they shall be taxed and charged the same as in other cases and no more.”). 3 {28} Section 541 was later repealed and replaced by a provision outlawing the 4 taxation of costs against the territorial government unless “absolutely fixed by 5 specific law[.]” 1889 N.M. Laws, ch. 32, § 18 (repealing C.L. 1884, § 541). The 6 language requiring costs incurred during appeals of the Engineer’s decisions to be 7 taxed in the same fashion as costs are taxed in district courts dates to 1907, when 8 Chapter 32, Section 18 of New Mexico Laws was still in force. See 1907 N.M. Laws, 9 ch. 49, § 66 (“The costs in [appeals from the board of water commissioners are] to be 10 taxed the same as costs in cases in the district court and at the same rates and that the 11 same shall be paid in accordance with the judgment of the board or [the] court in each 12 case.”). Thus, at the time it was adopted, the Legislature would have understood the 13 provision allowing for the taxation of costs in water appeals to not apply to the 14 territory itself because laws applicable at the time would have required an explicit 15 statement subjecting the territory to the taxation of costs. 16 {29} But two intervening developments changed the law in ways that are important 17 to understanding Section 72-7-1(D)’s application in this case: first, the Legislature 18 adopted Section 39-3-30 in 1966. As Kirby explains, the effect of Section 39-3-30 19 was to supersede Rule 1-054’s prohibition of the taxation of costs against state 17 1 entities absent express statutory authorization. Kirby, 1982-NMCA-014, ¶ 21. Then, 2 in 1971, the Legislature substantially amended and recompiled Section 72-7-1(D). As 3 we noted in Kirby, when the Legislature recompiles or amends a statute, it is 4 presumed to be aware of other relevant statutes and court holdings at the time of the 5 recompilation or amendment. 1982-NMCA-014, ¶¶ 20-21. By leaving intact the 6 language allowing the taxation of costs in the same manner as costs are taxed in cases 7 brought in district court, the Legislature was presumptively aware Section 72-78 1(D)’s incorporation of the law governing costs in cases brought in district court 9 would incorporate Section 39-3-30. 10 {30} We note that the Legislature is free to revise Section 72-7-1(D) in order to 11 exempt the Engineer from taxation of costs on appeals in district court. But given our 12 interpretation of Section 39-3-30 in Kirby and Section 72-7-1(D)’s broad and 13 unqualified incorporation of the law governing taxation of costs in civil actions, we 14 must reject the Engineer’s arguments that Section 72-7-1(D) should not be construed 15 to apply to all parties to an appeal from the Engineer’s office, including the Engineer 16 himself. 17 {31} In sum, the plain meaning of Section 72-7-1(D) subjects the Engineer to the 18 taxation of costs in the same way that state entities are subject to cost awards in civil 19 actions. We therefore conclude that the district court did not act outside its authority 18 1 in taxing Applicant’s costs against the Engineer. 2 The District Court Did Not Abuse its Discretion in Awarding Costs in This Case 3 {32} We review a district court’s grant or denial of a motion for an award of costs 4 for an abuse of discretion. Pioneer Sav. & Trust, F.A. v. Rue, 1989-NMSC-079, ¶ 12, 5 109 N.M. 228, 784 P.2d 415. The Engineer argues that the district court abused its 6 discretion by taxing costs against the Engineer because it misapprehended the legal 7 standard that applies to motions to tax costs and it rejected the Engineer’s policy 8 arguments against an award of costs in this case. 9 {33} The Engineer first argues that the district court abused its discretion by 10 applying an incorrect legal standard to Applicant’s motion for costs. The Engineer 11 points to oral statements by the district court that it “appears there is a directive” in 12 Rule 1-054 and Section 39-3-30 that required the district court to tax Applicant’s 13 costs against the Engineer. The Engineer argues that this statement indicates that the 14 district court granted Applicant’s motion for costs because it was laboring under the 15 mistaken belief that it had no discretion to deny the motion. 16 The district court’s statement was as follows: 17 18 19 20 21 22 In amending [Section 72-7-1], these state engineer cases . . . could come to the court as a case that might well be litigated with new evidence and new costs . . . . When I read [Section 72-7-1] and look at Rule [1-054] concerning costs . . . I’m having a hard time with the . . . Engineer’s position that costs shouldn’t be awarded. It appears that there is a directive to me. 19 1 {34} We disagree with the Engineer’s assertion that this statement proves that the 2 district court was laboring under an incorrect apprehension of the law. Rather, the 3 district court was expressing its general agreement with Applicant’s argument that 4 under Section 72-7-1(D), the prevailing party is presumptively entitled to an award 5 of costs in all appeals of the Engineer’s decisions. See In re Stailey, 1994-NMCA6 015, ¶ 21, 117 N.M. 199, 870 P.2d 161 (noting that “a presumption exists that a 7 prevailing party normally is entitled to costs as a matter of course and liability for 8 costs is a normal incident of defeat”). Since we have already held that Section 72-79 1(D) imports this presumption into appeals from the Engineer’s office, the district 10 court’s statement was legally sound insofar as it implied that the district court is 11 presumptively required to award the prevailing party its costs. To the extent that the 12 district court’s statement can be characterized to suggest the court was not aware that 13 it could deny Applicant’s motion for costs as a matter of discretion, we are unwilling 14 to infer such an unawareness based solely on the court’s use of the word “directive.” 15 {35} The Engineer next argues that because the district judge who granted 16 Applicant’s motion for an award of costs (Judge Mathew) was not the same district 17 judge who presided over the trial and entered judgment in the case (Judge Pfeffer), 18 “[i]t would have been difficult for Judge Mathew to exercise any discretion over some 19 of the equitable factors raised by the State Engineer in his objections to the Cost 20 1 Bill.” We note first that Applicant moved to recuse Judge Mathew, and the Engineer 2 opposed Applicant’s motion. Now the Engineer takes a different position altogether: 3 Judge Mathew should have sustained the Engineer’s objections to Applicant’s bill of 4 costs because he lacked familiarity with the case as a whole. 5 {36} But Judge Mathew’s order granting Applicant’s motion for costs stated that he 6 had “considered the briefs filed by both parties and the oral arguments of both 7 parties” before deciding to grant the motion. To the extent that the Engineer argues 8 that a district judge has an independent obligation to evaluate the entire record of a 9 case (as opposed to those portions pointed out in briefing by the parties) in deciding 10 whether to tax costs, we disagree. First, we note that a district court need only give 11 reasons for denying a motion for costs; otherwise there is a rebuttable presumption 12 that costs should be awarded to the prevailing party. 13 {37} Second, the text and structure of Rule 1-054(D) make clear that the judge who 14 awards costs to the prevailing party need not be intimately familiar with the 15 proceedings before judgment. When a court enters judgment, the prevailing party 16 submits a bill of costs to the clerk of court, not the district judge who presided over 17 the case. Rule 1-054(D)(4). If the losing party fails to object to the prevailing party’s 18 bill of costs, then the clerk of court “shall tax the claimed costs which are allowable 19 by law.” Id. (emphasis added). Thus, Rule 1-054 tasks the clerk of court with the 21 1 responsibility of determining whether a specific cost is allowed by law and then 2 creates a presumption that those costs are to be taxed against the losing party. A 3 district judge only becomes involved when the losing party files objections to the 4 prevailing party’s bill of costs. Id. Thus, under Rule 1-054, it is the losing party’s 5 responsibility to identify aspects of the record and any other considerations that 6 would justify disallowing costs; given the presumption in favor of awarding costs, it 7 would make little sense to adopt the Engineer’s argument that a district judge should 8 consider the propriety of a cost award even without objections from the losing party. 9 {38} The Engineer next argues that the district judge’s decision to tax costs against 10 the Engineer was an abuse of discretion in light of the equities impacting this case. 11 The Engineer argues that in opposing Applicant’s claim, the Engineer was merely 12 “act[ing] within the statutory mandate of the Water Code” by “tak[ing] reasonable 13 and appropriate action to protect and administer the water laws of New Mexico.” The 14 Engineer also argues that awarding costs in this case will cause the Engineer to 15 change its standing practice of refusing to seek an award of costs when it prevails in 16 appeals to district court. 17 {39} The district court did not abuse its discretion in rejecting these contentions for 18 two reasons. First, Section 72-7-1(D) cannot permit the taxation of costs against the 19 Engineer as a general matter but render an award of costs an abuse of discretion when 22 1 the Engineer merely acts within his statutory mandate in defending the appeal; if that 2 were so, every award of costs against the Engineer would be an abuse of discretion. 3 {40} Second, we are not persuaded that the Engineer’s threat to seek costs when it 4 prevails dictates a conclusion that the district court abused its discretion. We note that 5 the Engineer’s threat to seek cost awards against the “farmers with small holdings, 6 acequia parciantes, and concerned citizens” in other cases depending on the outcome 7 of this case, seems retaliatory. 8 {41} In sum, we see no abuse of discretion in the district court’s decision to tax 9 Applicant’s costs against the Engineer. 10 CONCLUSION 11 {42} Section 72-7-1(D) permits the taxation of the prevailing party’s costs against 12 the Engineer. The district court did not abuse its discretion in awarding costs against 13 the Engineer in this case. 14 {43} Affirmed. 15 {44} IT IS SO ORDERED. 16 17 _________________________________ J. MILES HANISEE, Judge 23 1 WE CONCUR: 2 _________________________________ 3 CYNTHIA A. FRY, Judge 4 _________________________________ 5 RODERICK T. KENNEDY, Judge 24
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