October 29, 2010 – Horace Bounds, Jr. and Jo Bounds and The San Lorenzo Community Ditch Association and New Mexico Farm & Livestock Bureau v. State of New Mexico and John R. D’Antonio, Jr., New Mexico State Engineer, No. 28,860

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: ___________
Filing Date: October 29, 2010
NO. 28,860
HORACE BOUNDS, JR.,
Plaintiff-Appellee,
and
JO BOUNDS and THE SAN LORENZO
COMMUNITY DITCH ASSOCIATION,
Plaintiffs,
and
NEW MEXICO FARM & LIVESTOCK
BUREAU,
Intervenor-Appellee,
v.
STATE OF NEW MEXICO and
JOHN R. D’ANTONIO, JR., New
Mexico State Engineer,
Defendants-Appellants.
APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
J.C. Robinson, District Judge

Hubert & Hernandez, LLC
Beverly J. Singleman
Stephen A. Hubert
Las Cruces, NM
for Appellee Bounds
Hennighausen & Olsen, L.L.P.
A.J. Olsen
Alvin F. Jones
Roswell, NM
for Intervenor
Gary K. King, Attorney General
DL Sanders, Chief Counsel, Special Assistant Attorney General
Santa Fe, NM
Brett J. Olsen, P.C.
Brett J. Olsen, Special Assistant Attorney General
Albuquerque, NM
Law Offices of Randall W. Childress, P.C.
Stacey J. Goodwin, Special Assistant Attorney General
Santa Fe, NM
for Appellants
Law & Resource Planning Associates, A Professional Corporation
Charles T. DuMars
Stephen Curtice
Patrick J. Redmond
Albuquerque, NM
for Amici Curiae 4 Daughers Land & Cattle Company, Great Western Ranch,
LLC, Sanders Land & Cattle, Inc., Western New Mexico Water Preservation
Association, and Verde Realty

Taylor & McCaleb, P.A.
Jolene L. McCaleb
Elizabeth Newlin Taylor
Corrales, NM
for Amicus Curiae New Mexico Ground Water Association
Basham & Basham, P.C.
Mark A. Basham
Santa Fe, NM
for Amicus Curiae New Mexico Association of Counties
Frank Katz, City Attorney
Marcos Martinez, Assistant City Attorney
Santa Fe, NM
for Amicus Curiae City of Santa Fe
Jane Marx, Attorney at Law, P.C.
Jane Marx
Albuquerque, NM
Janov Law Offices, P.C.
Gwenellen P. Janov
Albuquerque, NM
for Amici Curiae The Pueblo of San Felipe and The Zuni Tribe
Navajo Nation Department of Justice
Stanley M. Pollack
Bidtah N. Becker, Water Rights Unit
Window Rock, AZ
for Amicus Curiae The Navajo Nation

Luebben Johnson & Barnhouse LLP
Samuel D. Hough
Albuquerque, NM
for Amicus Curiae The Pueblo of Santa Ana
Sonosky, Chambers, Sachse, Mielke & Brownell, LLP
David C. Mielke
Albuquerque, NM
for Amicus Curiae The Pueblo of Isleta

OPINION
SUTIN, Judge.
{1} 	We address the question whether New Mexico’s domestic well statute (the
DWS), NMSA 1978, § 72-12-1.1 (2003), is facially unconstitutional. The DWS states
that the New Mexico State Engineer shall issue domestic well permits to draw
groundwater for domestic use “[u]pon the filing of each application.” The DWS is
controversial because it requires the permit to be issued upon application without
notice, and any prior evaluation by the State Engineer of the effect, if any, of the
anticipated domestic water use on senior water rights in a fully appropriated basin.
{2} 	Plaintiffs Horace Bounds, Jr. (Bounds), a senior water rights holder, and his
wife, Jo Bounds, who was dismissed from the action as a party, sued Defendants State
of New Mexico and John R. D’Antonio, Jr., New Mexico State Engineer (the State
Engineer) (collectively, Defendants) for declaratory and injunctive relief. The New
Mexico Farm and Livestock Bureau intervened as a party plaintiff. Bounds sought to
declare the DWS facially unconstitutional and to prevent the State Engineer from
issuing domestic well permits without first determining that unappropriated water was
available, the permit would not impair senior water rights, and issuance of the permit
was in the public interest.
{3} 	Bounds claimed that the automatic issuance of domestic well permits under the

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DWS in a fully appropriated basin would necessarily impair his senior water right and
place the domestic well permittees in a position of priority in violation of the doctrine
of prior appropriation set out in Article XVI, Section 2 of the New Mexico
Constitution (the priority doctrine). The district court agreed and declared that on its
face the DWS was unconstitutional because it was an impermissible exception to the
priority doctrine. The court required the State Engineer to administer domestic well
applications no differently than all other applications to appropriate groundwater.
{4} 	We hold that the DWS does not on its face violate the priority doctrine or
constitute an impermissible exception to that doctrine. The priority doctrine is but a
broad 	principle. 	The 	Legislature 	is 	authorized 	to 	enact 	laws 	providing 	for
administration of appropriation of water. The DWS creates the procedure for issuing
permits for appropriation of groundwater for domestic use. 	The State Engineer is
authorized in legislation to administer the appropriation of water and to adopt
regulations relating to that process.
{5} 	The Legislature is authorized to enact laws providing for administrative
enforcement of priority of use in times when water use by junior rights must be
curtailed in order to protect against impairment of senior rights. 	Under statutory
authority, the State Engineer has the continuing and steadfast duty to administer water
use in a manner that protects senior water rights from impairment. 	Barring

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contravention of the priority doctrine, the Legislature can enact exceptions to already
existing statutes relating to priority administration. 	It stands to reason that the
Legislature relies on the State Engineer’s sound and careful discretion in exercising
curtailment authority when curtailment is necessary because of impairment of senior
water rights due to existing or impending water shortages.
BACKGROUND
A. 	Background of Action
{6} 	Bounds owns irrigation rights with an 1869 priority as to waters in the “Upper
Mimbres.” In his complaint, Bounds challenged the constitutionality of the DWS on
the ground that it permits continued withdrawals of groundwater and takings of
surface water to the detriment of his vested property rights. He complained that the
DWS requires the State Engineer without the exercise of discretion to issue permits
for domestic wells solely upon application for the permit despite impairment of his
and others’ senior water rights.
{7} 	Bounds complained about the issuance of prior and future domestic well
permits despite existing drought conditions and previous serious water shortages,
about the inability of the State Engineer to deny domestic well permits, and about
unregulated withdrawals from permitted domestic wells. He sought to enjoin the State
Engineer from issuing domestic well permits in the Rio Mimbres Stream System

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and/or the Mimbres Underground Water Basin because all water rights had been fully
adjudicated and that there are no unappropriated waters remaining. 	Bounds also
asserted that the DWS violates due process and constitutes an unconstitutional taking
of his vested property right in violation of 42 U.S.C. § 1983, claims that the district
court dismissed without prejudice.
{8} 	Defendants moved to dismiss based on ripeness along with other motions not
pertinent to this appeal. 	Following an evidentiary hearing on ripeness and other
issues, the court entered an order denying Defendants’ motion to dismiss. The court
denied Defendants’ motion for reconsideration in which they attacked several of the
court’s findings and conclusions as lacking support in the record or as not necessary
for any ultimate determination. 	Defendants filed a motion for summary judgment
asking the court to determine that the DWS was constitutional and that there were no
regulatory takings of Bounds’ property. The parties then agreed that the district court
should vacate the trial setting and, based on the record then before the court, the court
would proceed to decide, purely as a legal issue, the single and dispositive issue of the
constitutionality of the DWS.
{9} 	The district court filed a decision with findings of fact and conclusions of law.
In regard to available water in the Mimbres Basin, the court found:
4. 	The entire Mimbres Basin has been closed since 1972. In a closed
basin there is no water available for appropriation.

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5. 	The entire basin has been adjudicated, including all ground water
and surface water.
. . . .
23. 	It 	is 	not 	logical, 	let 	alone 	consistent 	with 	constitutional
protections, to require the [State Engineer] to issue domestic well
permits 	without 	any 	consideration 	of 	the 	availability 	of
unappropriated water or the priority of appropriated water.
As to the issue of any actual impairment of Bounds’ water rights, the court determined
that “Bounds does not have to suffer actual impairment to attack the constitutionality
of the statute” and that it would “do little good for Bounds, and others . . . to sit idly
and wait for actual impairment.” The court stated that “[i]t is not what has been done,
but what can be done under a statute that determines its constitutionality.”
{10} 	In regard to the State Engineer, the court found that the State Engineer “has
long considered [the DWS] to be mandatory and, since 1953, has issued domestic well
permits without regard to availability of unappropriated water or priority of
appropriated water.” The court also found that the State Engineer “has recognized its
lack of power to protect senior water rights and has attempted, without success, to get
the Legislature to amend [the DWS].” In addition, the court found that in the present
case the State Engineer had decided that the DWS was constitutional and had
indicated that “it may have regulatory authority to control domestic wells[,]”
something the court found to be “questionable.”

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{11} 	Continuing its findings, the court stated that the State Engineer “testified he
would not subject domestic wells to a priority call notwithstanding this [was] a
derogation of his [constitutional] duty.” 	The court further stated that the State
Engineer had “no statutory or regulatory process in place to give senior appropriators
procedural or substantive due process” and that “[s]enior appropriators do not even
get notice of application, let alone a hearing.” 	The court found that the DWS
“lack[ed] any due process provisions to protect senior water rights from out of priority
review of domestic well applications.” The court also found that the lack of protection
was a violation of due process, the State Engineer, the State, and the Legislature were
charged with the protection of senior water rights owners’ properties, and the DWS
“ha[d] no due process safeguards including, but not limited to, notice to senior water
right owners, a determination whether an application, if approved, will impair existing
[water] rights or a hearing.”
{12} 	In its conclusions of law, the district court’s final judgment and decree declared
the DWS to be unconstitutional as a matter of law and that the State Engineer was
required to “administer all applications for domestic well permits the same as all other
applications to appropriate water.”
B. 	Preliminary Matters: Issues Abandoned or
Otherwise Not Pursued by the Parties
{13} 	Having expressed the preference that this Court reach and decide the

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constitutional issue, Defendants have not pursued and have therefore abandoned their
contention that Bounds’ claims were not ripe. Bounds sought to invalidate the DWS
on due process grounds in the district court. 	However, Bounds essentially
acknowledged in oral argument before this Court that notice and opportunity to
challenge a domestic well application was not an issue he was pursuing, because to
make that an issue would mean that some domestic well permits (where the applicant
has not purchased water rights) might be permissible; whereas, Bounds’ position on
appeal definitely is that no applications for domestic well permits in the Mimbres
Basin should be granted. In addition, Bounds acknowledged in oral argument that his
priority call request was not an issue he was interested in pursuing on appeal. Based
on the foregoing, we therefore do not address the ripeness, due process, and priority
call issues that were raised in the district court.
C. 	Constitutional, Statutory, Regulatory, and Case Law Background
{14} 	The 	New 	Mexico 	Constitution, 	New 	Mexico’s 	Water 	Code, 	the 	State
Engineer’s rules and regulations and orders, and our appellate courts’ decisions,
provide important background and guidance on issues of appropriation of water and
priority of water rights. We set these authorities out as tools for understanding the
parties’ positions and the district court’s rulings.
1. 	Constitution and Statutes

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{15} 	Waters of the state belong to the public, and unappropriated waters are subject
to appropriation for beneficial use in accordance with the laws of the state. 	N.M.
Const. art. XVI, §§ 2, 3. The priority doctrine reads, “Priority of appropriation shall
give the better right.” 	N.M. Const. art. XVI, § 2. 	Our Legislature has enacted a
comprehensive Water Code governing the appropriation of water. See NMSA 1978,
§§ 72-1-1 to 72-20-103 (1907, as amended through 2009). 	The state is owner of
waters, and the Legislature prescribes beneficial use. 	State ex rel. Erickson v.
McLean, 62 N.M. 264, 271, 308 P.2d 983, 987 (1957). Section 72-1-2 provides that
“[b]eneficial use [of water] shall be the basis, the measure and the limit of the right to
the use of water[.]”
{16} 	The following provisions in the Water Code provide guidance on the issues
before us. 	Section 72-2-1 establishes the State Engineer, who is given general
supervision of the appropriation and distribution of state waters “and such other duties
as required.” Section 72-1-2 states that “[p]riority in time shall give the better right.”
Section 72-2-9.1, entitled “[p]riority administration,” declares in Subsection (A) that
the need for water administration is urgent and gives the State Engineer “authority to
administer water allocations in accordance with the water right priorities.” Section
72-2-9.1(B) requires the State Engineer to adopt rules for priority administration to
ensure that the State Engineer exercises the given authority in three specific ways,

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namely, “(1) so as not to interfere with a future or pending adjudication; (2) so as to
create no impairment of water rights, other than what is required to enforce priorities;
and (3) so as to create no increased depletions.” 	Section 72-5-6 requires the State
Engineer to determine whether there is unappropriated water available for the benefit
of an application seeking to appropriate water. 	Under Section 72-5-6, if water is
available, the State Engineer may permit the appropriation if it is not contrary to the
conservation of water and is not detrimental to the public welfare of the state. Under
Section 72-5-7, if, in his opinion, there is no unappropriated water available, the State
Engineer is required to reject the application.
{17} 	Underground water (groundwater) appropriation is the focus of Sections 72-12-
1 to -28. Under Section 72-12-1, groundwaters that have reasonably ascertainable
boundaries “belong to the public and are subject to appropriation for beneficial use.”
Generally, new appropriations of groundwater are governed by Section 72-12-3.
Section 72-12-3(E) requires the State Engineer to issue a permit to appropriate
groundwater 	upon 	making 	certain 	findings. 	He 	must 	find 	that 	there 	are
“unappropriated waters or that the proposed appropriation would not impair existing
water rights from the source[.]” Id. He must also find that the proposed appropriation
“is not contrary to conservation of water within the state and is not detrimental to the
public welfare of the state[.]” 	Id. 	The permit and appropriation are “subject to the

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rights of all prior appropriators from the source.” 	Id. 	The State Engineer
acknowledges that in reaching a determination under Section 72-12-3(E), “the State
Engineer has the positive duty to determine whether existing rights would be
impaired.” 	City of Roswell v. Berry, 80 N.M. 110, 112, 452 P.2d 179, 181 (1969);
City of Albuquerque v. Reynolds, 71 N.M. 428, 433, 379 P.2d 73, 77 (1962).
{18} 	Before 1953 there existed no statutory distinction between domestic and non-
domestic purposes of use in the application process for the appropriation of
groundwater. 	See, e.g., 1943 N.M. Laws, ch. 70, § 1 (amending § 77-1103, 1941
Comp. (1953 Supp.)); 1931 N.M. Laws, ch. 131, §§ 1, 3. The pre-1953 predecessor
to Section 72-12-1 was amended in 1953 to codify administrative practices that
excepted applications for domestic, livestock watering, and certain temporary uses
from certain procedures required under the then predecessor to Section 72-12-3. See
1953 N.M. Laws, ch. 61, § 1; NMSA 1953, § 75-11-1 (Vol. 11, 1965 Pocket Supp.);
§ 77-1101, 1941 Comp. (1953 Supp.). Throughout several amendments after 1953,
the Legislature continued to provide for an application process that did not require
applicants for domestic water use to follow the general groundwater application
requirements of Section 72-12-3 and its predecessors. See, e.g., §§ 72-12-1, -1.1, -1.2,
-1.3; 2003 N.M. Laws, ch. 298, §§ 1-4; 2001 N.M. Laws, ch. 207, § 2; 1998 N.M.
Laws, ch. 50, § 1; 1959 N.M. Laws, ch. 193, § 1.

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{19} 	In 2003 the Legislature amended Section 72-12-1 and moved the provisions
relating to domestic wells, livestock wells, and temporary uses of water from Section
72-12-1 into three stand-alone provisions appearing in newly created Sections 72-12-
1.1, -1.2, and -1.3, respectively. Section 72-12-1 now provides that
[b]y reason of the varying amounts and time such [groundwater] is used
and the relatively small amounts of water consumed in the watering of
livestock; in irrigation of not to exceed one acre of noncommercial trees,
lawn or garden; in household or other domestic use . . . application for
any such use shall be governed by the provisions of Sections 72-12-1.1
through 72-12-1.3.
{20} 	Under Section 72-12-1.1 which, as we have indicated, we refer to as the DWS,
one desiring to use groundwater for the limited domestic uses described in that section
must file an application with the State Engineer, and the State Engineer “shall issue
a permit to the applicant to use the underground waters applied for[.]” Section 72-12-
1.2 establishes the same process for livestock well permits. 	Section 72-12-1.3 is
different—applications for temporary uses for prospecting, mining, public works,
highway 	and 	road 	construction, 	and 	certain 	drilling 	operations, 	require 	“an
examination of the facts” by the State Engineer as to whether the proposed use will
impair any existing rights of others. The DWS does not require the State Engineer to
assess water availability or impairment of rights before issuing a domestic well permit.
2. 	Rules and Regulations

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{21} 	In December 2004, the State Engineer promulgated comprehensive rules and
regulations to supervise “the physical distribution of water, to prevent waste, and to
administer 	the 	available 	supply 	of 	water 	by 	priority 	date 	or 	by 	alternative
administration, as appropriate.” 19.25.13.2 NMAC (12/30/04). The stated objective
is “to protect senior water right owners[.]” 19.25.13.6 NMAC (12/30/04). The rules
and regulations “provide the framework for the promulgation of specific water master
district rules and regulations.” 19.25.13.9 NMAC (12/30/04).
{22} 	In December 2005, the State Engineer adopted Order No. 171. Citing statutory
authorizations and based on findings of fact and conclusions of law related to the
“Upper Mimbres Stream System,” the State Engineer created the Upper Mimbres
Water Master District “to include all surface water and groundwater rights within the
area,” and he authorized the appointment of a water master. The State Engineer based
the need for a water master district on, among other findings:
2. 	The amount of water in the [d]istrict is finite and varies from year
to year based on annual spring run-off, which is dependent on
annual precipitation, and on the amount of groundwater being
diverted within the [d]istrict.
3. 	A final decree in the adjudication of all water rights in the
Mimbres Stream System and Mimbres Underground Water Basin
was entered on January 14, 1993.
4. 	The recent drought in the State of New Mexico has created a
water shortage crisis in the Upper Mimbres Stream System.

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5. 	The shortage of water in the Upper Mimbres Stream System is a
problem affecting the citizens of Grant County.
6. 	Creation of the District is necessary to ensure the economical and
satisfactory apportionment of water in the [d]istrict.
7. 	Appointment of a [w]ater [m]aster is necessary to ensure the
public safety of water users in the [d]istrict and to ensure
protection 	of 	existing 	water 	rights 	in 	the 	[d]istrict 	from
impairment.
{23} 	In July 2006, the State Engineer adopted Order No. 177, entitled “In the Matter
of Priority Administration of the Direct Flow of the Mimbres River Within the Upper
Mimbres Water Master District,” hereinafter Priority Admin. Order No. 177. This
order indicates that the State Engineer has a statutory responsibility to supervise the
appropriation 	and 	distribution 	of 	state 	waters 	in 	accordance 	with 	the 	prior
appropriation doctrine and further indicates that there is a need for conjunctive
administration of surface and groundwaters. 	Priority Admin. Order No. 177, at 1.
The order refers to “continued drought conditions” in New Mexico and indicates that
“a priority call by one or more owners of water rights within the [Upper Mimbres
Water Master] District can be reasonably anticipated before the district-specific
regulations can be promulgated [pursuant to] 19.25.13.9 NMAC.” Priority Admin.
Order No. 177, at 1. In addition, the order states:
WHEREAS, the State Legislature has recognized that the need for
water administration is urgent, . . . [Section] 72-2-9.1; and

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WHEREAS, the State Engineer determines that the need for water
rights administration within the [d]istrict is so urgent that administration
must proceed immediately by his [o]rder as provided at . . . 19.25.13.43
[NMAC (12/30/04)]; and
WHEREAS, the Sixth Judicial District Court, Luna County
entered its final decree adjudicating all water rights within the Mimbres
River Stream System, but excluded from the adjudication rights to the
use of groundwater for domestic and livestock purposes; and
WHEREAS, all adjudicated, permitted and licensed water rights
and all domestic and livestock wells are subject to curtailment under the
prior appropriation system according to the adjudicated or licensed
priority date or the priority . . . date of permit, but it is in the public
interest that the State Engineer allow essential de minimis indoor
domestic and livestock uses to continue; and
WHEREAS, in curtailing diversions by the priority dates of the
water rights within the [d]istrict, the [w]ater [m]aster is to allow limited
diversions by owners of out of priority water rights sufficient to meet
essential livestock and indoor domestic needs; and
WHEREAS, 	the 	State 	Engineer 	encourages 	alternative
administration 	or 	shortage 	sharing 	agreements 	in 	lieu 	of 	strict
curtailment of all water rights junior in time to the priority date of the
water right calling for water; and
WHEREAS, water right owners in the Upper Mimbres Water
Master District may enter into alternative administration or shortage
sharing agreements in order to prevent implementation of or in response
to priority administration in the [d]istrict[.]
Priority Admin. Order No. 177, at 2. 	Based on the foregoing and other facts or
assumptions of the State Engineer stated in Priority Admin. Order No. 177, the State
Engineer ordered that:

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NOW THEREFORE, I, John R. D’Antonio Jr., State Engineer
of the State of New Mexco, do hereby order that, in the event of priority
administration by the [w]ater [m]aster in the Upper Mimbres Water
Master District, (1) all water rights in the Upper Mimbres Water Master
District that are out of priority shall be curtailed and limited to essential
indoor domestic uses and all outdoor uses shall cease. Essential indoor
domestic uses include drinking, cooking, indoor cleaning, sanitary, and
cooling purposes, and exclude all uses made outside of a building; and
(2) the [w]ater [m]aster will curtail out-of-priority groundwater and
surface water rights for livestock purposes in order to limit such
diversions to the relatively small amounts of water required for essential
livestock watering.
IT IS FURTHER ORDERED that this [o]rder is limited to the
administration 	of 	the 	direct 	flow 	of 	the 	Mimbres 	River 	and
hydrologically connected groundwater. [19.25.13.7 NMAC (12/30/04)].
IT IS FURTHER ORDERED that the State Engineer will
approve or conditionally approve an alternative administration plan
proposed by water right owners within the [d]istrict if he determines,
based on information contained in the plan, that the plan will effectively
distribute the available water supply among the owners that have agreed
to the system of alternative administration and will not impair the water
rights of those that have not participated in the plan. [19.25.13.7(C)(4)
NMAC].
Priority Admin. Order No. 177, at 2-3. 	The order further sets out objections and
review procedures for owners of water rights to object to any act or failure to act of
the water master. Id. at 3-4. Informal objections are made to the water master and,
if the decision is adverse, the objector can obtain an evidentiary hearing before the
Office of the State Engineer’s District III Supervisor. Id. at 3. Under the order, the
District III Supervisor’s decision is final under Section 72-3-3 (relating to water

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districts) and subject to appeal pursuant to Sections 72-7-1 and 72-7-2, which set out
procedures for an appeal to the district court. Priority Admin. Order No. 177, at 4.
{24} 	In August 2006, the State Engineer promulgated regulations in regard to permits
issued under the DWS. 19.27.5.13 NMAC (8/15/06). Importantly, the State Engineer
established conditions of approval of an application under the DWS, among which are
the conditions that he can limit the use of water and that the right to divert water is
subject to curtailment by priority administration implemented by the State Engineer
or a court. 	19.27.5.13(A), (B)(8), (12) NMAC. 	Also in August 2006, the State
Engineer promulgated 19.27.5.14 NMAC, which authorized the State Engineer to
“declare all or part of a stream connected aquifer as a domestic well management area
to prevent impairment to valid, existing surface water rights.” Under this regulation,
the State Engineer is authorized to “develop administrative guidelines for each
declared domestic well management area.” 19.27.5.14(A) NMAC. At the same time,
the State Engineer promulgated 19.27.5.15 NMAC, entitled “Enforcement,” that states
that “[t]he holder of a 72-12-1.1 domestic well permit is subject to possible fines and
remedial action including cancellation of the permit for any failure to comply with the
terms and conditions of the 72-12-1.1 domestic well permit or any applicable
provision of 19.27.5 NMAC or Chapter 72 NMSA.” Regulation 19.27.5.15(B) also
states that “[i]n any stream system where the [S]tate [E]ngineer has appointed a water

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master, the water master shall have authority to administer all 72-12-1.1 domestic well
permits” and that all such permits “shall be subject to all applicable provisions of
district 	specific 	active 	water 	resource 	management 	regulations, 	including 	all
enforcement provisions.”
3. 	Court Decisions
{25} 	Although they do not involve the DWS, certain decisions of our Supreme Court
referred to by the parties touch on arguments made in the present case and reflect
present-day New Mexico surface and groundwater availability concerns. We discuss
these decisions only as a backdrop to our discussion of the issues in the present case.
{26} 	In Montgomery v. Lomos Altos, Inc., 2007-NMSC-002, 141 N.M. 21, 150 P.3d
971 (filed 2006), the Middle Rio Grande Administrative Area “guidelines” issued by
the State Engineer relating to review of water right applications recognized that the
Rio Grande’s surface waters were fully appropriated and that transfers of existing
valid water rights were necessary before any surface water could be made available
for new appropriations. 	Id. ¶¶ 8 n.6, 15, 18. Our Supreme Court clarified that the
applications in question, which sought to change the point of diversion and the place
and purpose of use of surface water rights to groundwater rights, were for “transfers”
and not for new appropriations of groundwater. 	Id. ¶¶ 1, 3, 14-15. 	The Court
indicated that “the State Engineer treats new groundwater appropriations as surface

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water right transfers which change the surface water right’s purpose of use and
diversion point,” apparently based on several factors. Id. ¶ 18. But what seems to be
an important factor may have been that “[t]he waters within the Rio Grande
Underground Water Basin are considered to be hydrologically connected to the Rio
Grande surface flows, so that any groundwater diversions in the system will
eventually deplete the surface flows within the system in an equal amount.” Id. ¶ 15.
{27} 	The Court in Montgomery addressed the protestant’s contention that “since it
is uncontested that some depletion of surface waters will occur as a result of the
[a]pplicants’ transfer applications, per se impairment of [the p]rotestants’ surface
water rights will occur. In other words, any depletion at the move-to location should
be considered impairment.” Id. ¶ 21 (emphasis omitted). The Court considered this
per se impairment contention “novel,” after stating “this Court has refused to make
any bright-line rule regarding what constitutes impairment.” Id. ¶¶ 12, 21. And the
Court stated: 	“[T]he question of impairment of existing rights is one which must
generally be decided upon the facts in each case, and . . . a definition of ‘impairment
of existing rights’ is not only difficult, but an ‘attempt to define the same would lead
to severe complications.’” Id. (alteration in original) (omission in original) (quoting
Mathers v. Texaco, Inc., 77 N.M. 239, 245, 421 P.2d 771, 776 (1966)). In discussing
Mathers, which involved the Lea County, New Mexico, Underground Water Basin,

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“a non-rechargeable basin,” the Court in Montgomery indicated that, in Mathers, “this
Court refused to find impairment as a matter of law where a lower water level would
result in increased pumping costs for the protestants,” and the Court held that “the
protestants’ impairment theory would make any groundwater appropriation approval
subsequent to the initial permit unlawful.” Montgomery, 2007-NMSC-002, ¶ 22. The
Court also relied on Stokes v. Morgan, 101 N.M. 195, 202, 680 P.2d 335, 342 (1984)
in the same regard, quoting Stokes’ statement that “[n]ew withdrawals which cause
minimal acceleration in the rate of saltwater intrusion or a minimal increase in salinity
do not constitute impairment as a matter of law.” 	Montgomery, 2007-NMSC-002,
¶ 22.
{28} 	In Lion’s Gate Water v. D’Antonio, 2009-NMSC-057, ¶ 3, 147 N.M. 523, 226
P.3d 622, our Supreme Court stated: “The State Engineer interprets [the] enabling
statutes [of Chapter 72] to require him, if he determines that no unappropriated water
is available, to summarily reject applications to appropriate water, see [§ 72-5-7], as
not being ‘in the form required by the rules and regulations established by him.’
[§ 72-5-1].” 	Lion’s Gate involved the Gila River in New Mexico, which was
recognized as being “overappropriated.” 2009-NMSC-057, ¶ 4. The Court broadly
stated:
Whether water is available for appropriation is the threshold issue that
is dispositive of a permit application when water is not available for

20
appropriation. The Legislature, in creating an efficient and effective
administrative process for water rights applications, recognized the
dispositive nature of this threshold issue when it crafted New Mexico’s
[W]ater [C]ode and mandated in Section 72-5-7 that the State Engineer
“shall” summarily reject water rights applications upon a determination
that water is unavailable for appropriation.
Id. ¶ 25. Reading Section 72-5-7 “harmoniously” with Section 72-2-16, the Court
concluded that “the Legislature intended the State Engineer to employ his or her
authority to efficiently dispose of applications without a hearing whenever he or she
determines that water is unavailable to appropriate.” Lion’s Gate, 2009-NMSC-057,
¶ 25. The Court stated that, under Section 72-5-7, the State Engineer “is required to
reject the application,” where the finding is that water is unavailable to appropriate,
and further, that “[f]rom a determination that water is unavailable for appropriation
follows the inevitable conclusion that any appropriation of water under these
circumstances would be contrary to the conservation of water and detrimental to
public welfare and prior water rights.” Id. ¶¶ 26-27. We note that the appropriation
of groundwater for domestic use and the application or constitutionality of the DWS
were not at issue in Lion’s Gate.
{29} 	Of note, in Herrington v. State ex rel. Office of State Engineer, 2006-NMSC-
014, ¶¶ 1, 3, 139 N.M. 368, 133 P.3d 258, our Supreme Court addressed the plaintiffs’
claim that their senior surface water rights relating to a tributary of the Mimbres River
had been diminished by groundwater wells of junior rights. The plaintiffs sought to

21
supplement their surface water rights with a well pursuant to the Templeton doctrine
established in Templeton v. Pecos Valley Artesian Conservancy District, 65 N.M. 59,
332 P.2d 465 (1958). 	Herrington, 2006-NMSC-014, ¶¶ 1-2. The Court addressed
what the plaintiffs’ right was to a Templeton supplemental well under the Templeton
requirements. The DWS was not an issue in the case, but important for the present
case are the following closing comments of the Court regarding the DWS.
Parenthetically, we note the difficulty presented by . . . Section 72-
12-1.1 . . . which directs the State Engineer to issue permits to domestic
well applicants subject to municipal ordinances. 	This requirement
complicates the State Engineer’s efforts to manage a limited water
supply in a sustainable way. 	Furthermore, we recognize the practical
difficulty of terminating continued use of existing junior domestic wells
when they result in a shortfall to senior appropriators. 	As a result,
protecting the surface rights of senior appropriators . . . may prove
difficult when many domestic wells draw from the same basin.
Herrington, 2006-NMSC-014, ¶ 50. 	Yet, note our Supreme Court’s statement in
Reynolds in which the Court stated:
It is an admitted fact that the surface waters of the Rio Grande are
fully appropriated. 	It is also an admitted fact that the underground
waters, in the area where the city proposed to drill its wells, contribute
substantially to the flow of the Rio Grande, thus constituting a part of the
source of the stream flow.
71 N.M. at 434-35, 379 P.2d at 77. The Court further stated:
Under the facts in this case, with the Rio Grande stream flow
being 	fully 	appropriated, 	it 	would 	indeed 	be 	anomalous 	for 	the
[L]egislature to enact laws designed to permit water, which would
otherwise reach the stream in substantial quantities, to be withdrawn by

22
pumps and thereby attempt to deprive the prior appropriators of their
vested rights.
Id. at 437, 379 P.2d at 79.
{30} 	The background of priority doctrine, statutes, regulations and orders of the State
Engineer, and decisions of our appellate courts, reflects legislative, administrative, and
judicial concerns about water appropriation, scarcity, and priority. This background
of 	authorities 	shows 	obvious 	attempts 	through 	legislation 	and 	administrative
regulations and orders to provide guidelines as well as rules for addressing those
concerns. It seems fair to conclude that up to this point, although appellate decisions
have shown that, generally, the State Engineer is not to allow and does not allow
appropriation of water when none is available, none of the decisions can reasonably
be read as explicitly or implicitly holding that, on its face, the priority doctrine forbids
the Legislature from enacting a law making an exception to existing laws for new
appropriations of groundwater for domestic use and allowing permits for wells for that
use. With this background in mind, we turn to the issue of facial constitutionality of
the DWS.
DISCUSSION
The Issue of the Facial Constitutionality of the DWS
{31} 	In focusing on what the priority doctrine is and how it should be enforced, the
district court in the present case found:

23
10. 	The rule that priority of appropriation gives priority of right
as between two appropriators from the same source of supply is an
essential feature of the doctrine of appropriation.
11. 	The right of a junior appropriator is at all times subservient
to the rights of prior appropriators and can only be exercised after the
needs of the prior appropriators have been supplied. Harkey v. Smith, 31
[N.M.] 521, 247 P. 550 (1926).
12. 	The 1910 Constitutional Convention considered water
rights, including domestic use.
13. 	The 1910 Constitutional Convention refused to adopt a
hierarchy of appropriation by use and enacted appropriation based on
priority in time.
. . . .
15. 	Laws 1953, Ch. 60 at 105, the predecessor to [Section] 72-
12-1 through [Section] 72-12-1.3, created an exception to the prior in
time appropriative right by exempting domestic wells and livestock.
. . . .
23. 	It is not logical, let alone consistent with constitutional
protections, to require the [State Engineer] to issue domestic well permits
without any consideration of the availability of unappropriated water or
the priority of appropriated water.
These findings are essentially conclusions that led the court to hold that the DWS was
“an impermissible exception to the priority administration system created by” the
Constitution.
{32} 	Defendants’ grounds for attack on the court’s judgment declaring the DWS to
be unconstitutional are that (1) the court failed to accord the DWS the presumption of

24
constitutionality, ignored canons of statutory construction, and otherwise applied a
flawed constitutional analysis; and (2) the court “incorrectly equated issuance of a
permit with priority administration of water rights.”
Standard of Review and Rules of Construction
{33} 	The court entered a judgment under the Declaratory Judgment Act based on the
summary judgment record before the court and the court’s findings of fact and
conclusions of law. 	We review Bounds’ constitutional challenge under a de novo
standard of review. See State v. Druktenis, 2004-NMCA-032, ¶ 14, 135 N.M. 223, 86
P.3d 1050 (applying a de novo standard of review to challenges to a sex offender
registration statute on grounds that the statute violated the ex post facto clauses and
substantive and procedural due process). 	“We interpret the Constitution and
determine whether the law was properly applied to the facts through de novo review.”
Id. (internal quotation marks and citation omitted). 	Appellate courts “give no
deference 	to 	the 	district 	court’s 	conclusions 	of 	law.” 	Chapman 	v. 	Varela,
2009-NMSC-041, ¶ 5, 146 N.M. 680, 213 P.3d 1109. “When conclusions of law are
listed as facts, we do not afford them any deference in our review.” Ortiz v. Overland
Express, 2010-NMSC-021, ¶ 28, 148 N.M. 405, 237 P.3d 707. An appellate court is
not bound by a district court’s legal conclusions and may independently draw its own
conclusions of law on appeal. 	In re Estate of Duran, 2003-NMSC-008, ¶ 14, 133

25
N.M. 553, 66 P.3d 326. Rather than defer to the district court’s legal conclusions, “we
determine whether the court correctly applied the law to the facts of the case.”
Romero Excavation & Trucking, Inc. v. Bradley Constr., Inc., 1996-NMSC-010, ¶ 5,
121 N.M. 471, 913 P.2d 659.
{34} 	“It is well settled that there is a presumption of the validity and regularity of
legislative enactments. 	Indeed, we must uphold such enactments unless we are
satisfied beyond all reasonable doubt that the Legislature went outside the bounds
fixed by the Constitution in enacting the challenged legislation.” State ex rel. Udall
v. Pub. Employees Ret. Bd., 120 N.M. 786, 788, 907 P.2d 190, 192 (1995) (internal
quotation marks and citation omitted). “It is not the province of this Court to inquire
into the wisdom or policy of an act of the Legislature.” Id. “It is . . . a fundamental
principle that courts will not declare a legislative act unconstitutional if there is any
reasonable basis upon which it can be upheld.” Amador v. N.M. State Bd. of Educ.,
80 N.M. 336, 337, 455 P.2d 840, 841 (1969). We are to adopt a construction of a
statute that upholds its constitutionality. Johnson v. N.M. Oil Conservation Comm’n,
1999-NMSC-021, ¶ 17, 127 N.M. 120, 978 P.2d 327.
We presume that the Legislature has performed its duty, and kept within
the bounds fixed by the Constitution. [I]f possible, we will give effect
to the legislative intent unless it clearly appears to be in conflict with the
Constitution. We will not question the wisdom, policy, or justness of a
statute, and the burden of establishing that the statute is invalid rests on
the party challenging the constitutionality of the statute. An act of the

26
Legislature will not be declared unconstitutional in a doubtful case, and
. . . if possible, it will be so construed as to uphold it.
State ex rel. Office of State Eng’r v. Lewis, 2007-NMCA-008, ¶ 37, 141 N.M. 1, 150
P.3d 375 (filed 2006) (alteration omitted) (omission in original) (internal quotation
marks and citations omitted).
Statutes are enacted as a whole, and consequently each section or part
should be construed in connection with every other part or section,
giving effect to each, and each provision is to be reconciled in a manner
that is consistent and sensible so as to produce a harmonious whole. . . .
[] The general purpose of the water code’s grant of broad powers
to the State Engineer, especially regarding water rights applications, is
to employ his or her expertise in hydrology and to manage those
applications through an exclusive and comprehensive administrative
process that maximizes resources through its efficiency, while seeking
to protect the rights and interests of water rights applicants. 	An
exclusive and comprehensive administrative process is one that provides
for a plain, adequate, and complete means of resolution through the
administrative process to the courts.
Lion’s Gate, 2009-NMSC-057, ¶¶ 23-24 (internal quotation marks and citations
omitted). In a facial attack on a statute’s constitutionality, we look at whether there
exists a set of circumstances in which the statute can be constitutionally applied.
American Falls Reservior Dist. No. 2 v. Idaho Dep’t of Water Res., 154 P.3d 433, 443
(Idaho 2007).
Analysis of Constitutional Issue
{35} 	Bounds focuses on a single point that is consistent with the district court’s view

27
of the priority doctrine and the DWS. The point is best summarized as follows. All
of the waters in the Mimbres Basin are fully appropriated. No unappropriated waters
are available for further appropriation. The Mimbres Stream System water rights have
been fully adjudicated. 	Additional appropriation from domestic well permits will
necessarily deplete waters that are already fully appropriated and will necessarily
impair senior water rights. Thus, the automatic permitting of wells for domestic use
under the DWS necessarily gives a use priority to domestic well appropriators over
senior water rights forbidden under the priority doctrine. And the priority doctrine
constitutionally trumps this legislative attempt in Section 72-12-1.1 to create an
exception that permits such priority in use.
{36} 	The district court’s holding that the DWS “creates an impermissible exception
to the priority administration system created by N.M. Constitution [a]rt. XVI, § 2”
indicates a view that the priority doctrine contemplates a particular or definite priority
administration system to which the Legislature must adhere and from which the
Legislature cannot deviate. For the reasons that follow, this view is not supported in
the Constitution or statutes and is not sustainable as support for a conclusion that the
DWS is facially unconstitutional.
{37} 	The Constitution’s priority doctrine establishes a broad priority principle,
nothing more. The prior appropriation provision is not self-executing. In Lanigan v.

28
Town of Gallup, 17 N.M. 627, 633, 131 P. 997, 999 (1913), our Supreme Court stated
the rule on self-executing provisions as follows: “A constitutional provision may be
said to be self-executing when it takes immediate effect and ancillary legislation is not
necessary to the enjoyment of the right given, or the enforcement of the duty imposed.
In short, if a constitutional provision is complete in itself, it executes itself.” 	The
Court held that Article IX, Sections 12 and 13, regarding elections relating to the
issuance of bonds, were not complete in and of themselves and that legislation was
“necessary to the enjoyment of the right given.” Lanigan, 17 N.M. at 633, 131 P. at
999; see also State ex rel. Noble v. Fiorina, 67 N.M. 366, 367-68, 355 P.2d 497, 498
(1960) (holding a sentence in Article XX, Section 4 of the New Mexico Constitution
as not self-executing and as merely indicating a principle without laying down
governing rules); Jaramillo v. City of Albuquerque, 64 N.M. 427, 430, 329 P.2d 626,
628 (1958) (holding an Article XX, Section 19’s wage-related requirement not to be
self-executing but instead a declaration of principle or policy requiring legislation to
give it effect).
{38} 	The Legislature establishes the administrative process required for adherence
to the broad constitutional principle. Thus, the Legislature has the authority to enact
laws setting out the process and to enact exceptions to or deviate from those laws.
See Lewis, 2007-NMCA-008, ¶¶ 37-40 (indicating that the priority doctrine can be

29
read “to permit a certain flexibility . . . in attempting to resolve the longstanding
. . . water issues” and further stating that “although priority calls have been and
continue to be on the table to protect senior users’ rights, such a fixed and strict
administration is not designated in the Constitution or laws of New Mexico as the sole
or exclusive means to resolve water shortages where senior users can be protected by
other means”); see also Cent. Colo. Water Conservancy Dist. v. Simpson, 877 P.2d
335, 	344 	(Colo. 	1994) 	(en 	banc) 	(holding 	rights 	established 	by 	Colorado’s
constitutional priority doctrine not to be absolute because “[s]uch a view would create
impossible obstacles to any effective administrative policies designed to effectuate the
constitutional scheme” and reiterating the court’s recognition that Colorado’s
“General Assembly may impose reasonable regulations on the manner and method of
appropriation”).
{39} 	Pursuant 	to 	the 	several 	statutes 	relating 	to 	the 	administration 	of 	the
appropriation and use of water, including priority administration, the State Engineer
must see to it that senior water rights are not impaired by new appropriations. The
State Engineer is to adopt rules and regulations. Looking at the rules and regulations
and the orders of the State Engineer as set out earlier in this opinion, it appears that
the State Engineer gets the message, at least on paper.
{40} 	The Legislature has not detailed the specific conditions of water availability

30
existing on the ground that necessarily require and trigger enforcement of priority to
protect senior rights against impairment. 	Neither the Legislature nor the State
Engineer has detailed at precisely what point in time of scarcity the State Engineer
must act to protect senior rights by curtailing use. It is not unreasonable for senior
rights in a fully appropriated basin to be concerned in times of water shortage about
impairment or impending impairment of their senior rights. 	The acknowledged
difficulty facing both the senior-right owner and the State Engineer is evaluating
under what circumstances, and precisely when and in what manner, the State Engineer
needs to act to protect the senior rights. 	We note that, in instances not involving
domestic water use, the State Engineer has refused to permit new appropriations when
the State Engineer had determined that water was unavailable for appropriation. See,
e.g., Lion’s Gate, 2009-NMSC-057, ¶ 25; In re Waterfall Cmty. Water Users Ass’n
v. N.M. State Eng’r, 2009-NMCA-101, ¶¶ 5, 12, 20, 147 N.M. 20, 216 P.3d 270.
Under the DWS, however, the Legislature has required that domestic well permits be
issued without prior evaluation of water availability. The present case is a showcase
of the festering issue involving senior water rights owners, the Legislature, and the
State Engineer, with respect to the continuing proliferation of new applications for
permits for domestic water use.
{41} 	The Legislature implemented the DWS process “[b]y reason of the varying

31
amounts and time [groundwater] is used and the relatively small amounts of water
consumed . . . in household or other domestic use[.]” 	Section 72-12-1. 	The State
Engineer’s view on whether water for domestic use is available in an otherwise fully
appropriated basin with no unappropriated water was explained as follows.
I think if you had an engineer up here and were to testify with
respect to an application for one acre foot of water for domestic use, I
think he would be hard pressed to be able to state with any degree of
certainty that there is . . . adequate unappropriated water available to
satisfy a tenth of an acre foot of depletion.
These legislative and administrative views reflect an approach that attempts to fairly
meet domestic water use demands and to balance economic proof burdens while
leaving priority administration in the hands of the State Engineer, if and when such
administration is required.
{42} 	We are satisfied that a particular priority administration process is not dictated
by the priority doctrine but instead is in the Legislature’s hands pursuant to its
authority to enact statutes providing for the administration of appropriation and use
of surface water and groundwater. The Legislature has enacted statutes intended to
limit appropriation and use in circumstances in which the State Engineer determines
that a basin is fully appropriated with no available water for new appropriations.
See §§ 72-2-9.1, 72-5-6, -7, 72-12-3. 	Yet, we see no reason why the Legislature
cannot enact exceptions to or variations of the laws. The DWS is such an exception

32
or variation, ultimately leaving for the State Engineer, as difficult as it looks to be, the
administrative determination whether to curtail domestic use when senior water rights
are impaired or threatened with impending impairment because of water shortages.
{43} 	We must presume that the Legislature understands the criticality of and balance
needed for resolving the tension and clash between unavailability of water in fully
appropriated basins and the declared need to provide well water for new domestic use.
We must also presume that the Legislature has considered and weighed the burdens
of expense and proof when assessing whether to require applicants for domestic well
permits to initially prove that the use will not impair existing rights or whether to
leave to senior water rights owners the burden of showing that a permitted use will
impair their rights. We further must presume that the Legislature has determined that
it sees the hydrological expertise of the State Engineer as the preferable, if not the
only reasonable way to attempt to reach the right balance of priorities and needs. It
is up to the Legislature and the State Engineer to create an efficient, effective, and fair
administrative process to reach the required balance and to protect senior water rights.
Bounds’ and other senior water rights owners’ concerns should be addressed not to
the facial constitutionality of the DWS but instead through the political process to the
wisdom and propriety of the DWS, or through the administrative and judicial
processes with regard to the administrative failure of the State Engineer to abide by

33
his administrative duties.
{44} 	In the district court in this case, the State Engineer confirmed that water rights
owners can request the water master to engage in priority administration and that the
State Engineer provides “the opportunity for hearings to determine whether relief
requested from the [w]ater [m]aster should be granted.” To support that statement, the
State Engineer cited Section 72-3-3 as “unequivocally provid[ing]” that “[a]ny person
may appeal from the acts or decisions of the water master to the [S]ate [E]ngineer,
who shall promptly and at a stated time and place to be fixed by him, upon due notice
to the parties, hear and determine the matter in dispute[.]” In further support, the State
Engineer cited the same statute as “provid[ing] for further relief if [Bounds] still [is]
not satisfied, through an appeal ‘taken to the district court of the county, wherein the
irrigation works or the irrigated lands involved in such dispute are situated, in
conformity 	with 	the 	provisions 	of 	Sections 	72-7-1 	and 	72-7-2.’” 	Priority
Administration Order No. 177 set out earlier in this opinion also discusses avenues for
hearing objections.
{45} 	In sum, we conclude that the priority doctrine is not a system of administration.
It does not dictate any particular manner of administration of appropriation and use
of water or how senior water rights are to be protected from junior users in time of
water shortages. That the Legislature determines that domestic well permits are to be

34
issued upon application without prior evaluation of water availability or impairment
is not, in and of itself, a per se violation of the priority doctrine or of the Legislature’s
constitutional duty to assure that senior water rights are protected under the priority
doctrine. Although a basin is considered fully appropriated with no unappropriated
water available, we do not see how the Legislature is forbidden under a facial
constitutional attack from nevertheless enacting an exception to its existing statutory
regime permitting additional appropriation for domestic purposes as long as senior
water rights are not in fact impaired or subject to impending impairment because of
water shortages requiring priority administration to protect those rights.
{46} 	Amici for and against affirming the district court’s judgment present insightful
practical and policy arguments for their positions. 	We appreciate receiving those
arguments. 	The issues Amici have raised should be addressed by the Legislature
rather than through a facial attack on the statute’s constitutionality. 	Amici’s
arguments surely have been on the plates of the Legislature and the State Engineer on
more than one occasion; if not, they presumably will get there. In the present case, we
have not seen a reason to rely on the Amici arguments in reaching our decision.
Nevertheless, we think it noteworthy to point out various concerns expressed by
Amici briefs.
{47} 	The Amici brief of three Pueblos, the Zuni Tribe, and the Navajo Nation

35
(designating themselves as “Amici Tribes”) express several concerns. One concern
is the adverse impact that automatically permitting a proliferation of domestic wells
will inevitably have on owners of senior water rights. 	Amici Tribes contend that
leaving Amici Tribes and senior water rights owners to court resort provides no
comfort where, in the real world, courts are not likely to curtail domestic water use
after large residential developments or other, individual homes have been constructed.
As well, Amici Tribes assert that “[i]t is unlikely . . . senior rights holder[s] could ever
successfully enjoin impairment on a well-by-well basis” or that they would meet the
“burden of demonstrating likelihood of success on the merits, because it is the
cumulative effect of many new domestic wells—not the isolated effect of each single
new domestic well—that results in the impairment.” As law and practice stand, Amici
Tribes state, threats to tribe and senior water rights cannot “be evaluated until after the
damage has already been done.” Amici Tribes state:
It is the cumulative effect of the unregulated proliferation of domestic
wells that is creating the crises that tribes and other senior rights holders
disproportionately bear. 	The State Engineer’s current practices and
procedures simply do not adequately deal with the real problem. The
real problem can be dealt with only through a comprehensive legislative
solution or through an administrative scheme with sufficient authority,
funding, and governmental will to make it work.
(Footnote omitted.)
{48} 	Amici New Mexico Association of Counties and City of Santa Fe express land-

36
use concerns. The Counties point to a “great deal of growth in counties throughout
the [S]tate of New Mexico particularly on the urban fringe of the larger metropolitan
areas” and to long-established agricultural use in rural areas. 	They contend, for
example, that while they “are required to plan for sustainable and harmonious
development[,] they do not have any say in domestic well approvals utilized as a
source of water for . . . developments.” 	According to the Counties, this situation
interferes with their ability to engage in effective and orderly planning for growth,
development, and sustainability in counties. 	The Counties complain that the
automatic issuance of domestic well permits carries with it no assessment of the
detrimental impact on the public welfare.
{49} 	The City is similarly concerned “with the proliferation of domestic wells” and
points out that although the City has the power to deny permits for wells proximate
to City water lines, its domestic well ordinance does not solve the proliferation of
wells at a distance greater than 300 feet from a City water line and that, while the State
Engineer “examines the impacts that the City’s wells have on domestic wells, [he]
makes no examination of what impact domestic wells have on the City’s water rights.”
CONCLUSION
{50} 	We reverse the district court’s judgment holding that the DWS is facially
unconstitutional. We also reverse and set aside the judgment and order requiring the

37
State Engineer to administer domestic well water applications no differently than all
other applications to appropriate water.
{51} 	IT IS SO ORDERED.
__________________________________
JONATHAN B. SUTIN, Judge
WE CONCUR:
______________________________
ROBERT E. ROBLES, Judge
______________________________
LINDA M. VANZI, Judge