New Mexico Supreme Court saves water in the Jornada del Muerto

We’ve all heard that New Mexico water law might be summed up by the saying, “use it, or lose it.”  On Monday, the State’s Supreme Court issued a decision to that effect on an attempt in Sierra County to claim rights to almost 400 acre feet of water a year.  State ex rel. Office of the State Engineer v. Romero, S-1-SC-37903, sustained that saying and refined it a bit in concluding an interesting and instructive case.

If you drive over to Engle and take the Upham road south, in a few miles there will be a turn-off to the right towards the railroad tracks, and thereabouts you will find the remains of the former town of Cutter.  Mostly, you will find the cemetery, which served the booming mining town of over 3,000 people, and if you look for it, you will find a well.

Cutter was a depot for the vanadium mines in the Caballos.  The railroad put in the well in the 20s to water their steam engines.  The town would have taken a big hit when vanadium mining in the Caballos ceased, and then, of course, diesels came in in the 50s, and that was the end of the town as a watering hole.  In 1956, the post office, which was serving only six families, closed.

Almost 40 years later a former railroad engineer told Toby Romero’s cousin that the railroad was selling its unused properties, and Mr. Romero, his brother, and his cousin decided to buy the land the well was on in order to sell the water rights, which Mr. Romero declared to the Office of the State Engineer as amounting to 394.85 afy.  That is about 350,000 gallons of water a day:  the right to use a lot of water.

But then the rights got caught up in the ongoing adjudication of all water rights in the Lower Rio Grande Basin, and based on the State Engineer’s recommendation, the adjudication court discounted all of Mr. Romero’s claimed rights and offered him zero rights.  Mr. Romero refused the adjudicated offer, and the court appointed a special master to try the case.

Mr. Romero argued that he had used the well for his cattle, and so nonuse was not an issue, but the special master’s trial determined that only about 100 afa of water had been used by the railroad and that no water had been used from 1960 to the end of 1964 making those rights subject to common law forfeiture.  [Beginning 1965, the state operated under the forfeiture statute whereby after 4 years of nonuse, the State Engineer had to give notice of impending forfeiture and  allow a year for renewed usage; so that, forfeiture could only come after 5 years of nonuse and an ignored notice from the State Engineer.]   In fact, the nonuse lasted a lot longer, but that later nonuse didn’t trigger forfeiture because the State Engineer never gave notice.  The special master recommended to the adjudication court that the railroad’s water rights be forfeited and that only 3 afa of rights be granted Mr. Romero for watering cattle, and the adjudication court so ruled.

Mr. Romero, represented by the very prominent firm of Domenici (owned by our former Senator), appealed the case.  The appeals court found the adjudication court’s decision justified, and in its decision spent time to demonstrate that forfeiture was not an all-or-nothing proposition – that the unused part of a water right could be forfeited.  Since the forfeiture statute does not mention partial forfeiture, the appeals court took pains to derive the idea from the history of forfeiture in surface water and groundwater laws in New Mexico, concluding that although the statute does not mention partial forfeiture, it included the concept.  Mr. Romero’s attorney had argued that because the statute does not mention partial forfeiture, it was not permitted in New Mexico.  See State ex rel. Office of the State Engineer v. Romero, 2020-NMCA-001.

Mr. Romero and his lawyers appealed again, to the Supreme Court, and the Supreme Court decided that partial forfeiture is legal in New Mexico and sustained the special master’s findings and conclusions.

But the Supreme Court’s reasoning, now law, is interesting.  It did not follow the appeals court in finding partial forfeiture in the forfeiture statute itself but derived it as a corollary of the state Constitution, wherein beneficial use is described as “the basis, the measure and the limit” of a continued water right.  It weighed heavily on the word “measure” (that is, the measurable quantity of water), and it reaffirmed that in New Mexico, water is to do the greatest good for the greatest number of people.

The decision puts forfeiture on the most solid legal footing possible.  It might motivate the State Engineer to look for and give forfeiture notice regularly.  At present, his office does not do this, only looking at forfeiture when an application to change the nature of the rights comes in.  Without the State Engineer’s notification, the only way the public can reclaim unused rights is a court’s determination that the rights have been abandoned, which is extremely difficult to argue in court, because it necessitates proof of the intent to abandon, not just nonuse.  Without active forfeiture, rights holders prevent other people from using the water they do not use.

This decision may be a nice step towards renewing the sense of the common good in New Mexico water law, so often dominated by private profiteering, but it has a downside we should all think about.  The notion that water, because it is scarce, should be used to its maximum has resulted in water rights owners exercising those rights to the maximum, and thus the projects such as pecan orchards, etc., which are started just to preserve water rights from forfeiture.  Something needs to help water right owners embrace the feeling that maybe unused rights should be donated back to the common kitty they came from so those rights can be used beneficially for the common good.  You don’t lose anything when unused rights are forfeited; you give back what was lent to you by the people.  There’s a moral to this story.

Postscript:  Readers may find it ironic that one of the purchasers of Mr. Romero’s rights was the Spaceport, but when the Cutter well was use during construction, it went dry (I was told) and the rights were returned to Mr. Romero.  The whole litigation, we have to remind ourselves, was about selling rights, that is, making money, and only indirectly about the wet stuff we need.