April 13, 2020- State Engineer for the State of New Mexico v. Steven E. Faykus, No. A-1-CA-36848

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO ex rel.	2
STATE ENGINEER FOR THE STATE	3
OF NEW MEXICO,	4
Petitioner-Appellee,	5
v. 	No. A-1-CA-36848	6
STEVEN E. FAYKUS and THE FAYKUS	7
FAMILY REVOCABLE TRUST,	8
Respondents-Appellants.	9
APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY	10
James J. Wechsler, Presiding Judge	11
Gregory C. Ridgley, General Counsel	12
Arianne Singer, Deputy General Counsel	13
Richard A. Allen, Special Assistant Attorney General	14
Santa Fe, NM	15
for Appellee	16
Robert S. Simon	17
Albuquerque, NM	18
for Appellants	19
MEMORANDUM OPINION	20
B. ZAMORA, Judge.	21
{1} 	Respondents Steven E. Faykus and the Faykus Family Revocable Trust appeal	22
from a district court order issued in a stream system adjudication, pursuant to NMSA	23
Court of Appeals of New Mexico
Filed 4/13/2020 11:07 AM

2
1978, §§ 72-4-15 to -19 (1907, as amended through 1965). Respondents contend (1)	1
substantial evidence did not support the special master’s finding that Faykus had not	2
demonstrated appropriation for beneficial use prior to 1907; (2) substantial evidence	3
did not support the special master’s finding that, even if there had been such	4
appropriation, it was abandoned or forfeited prior to 1938; (3) the special master	5
erred in refusing to recognize flood irrigation of pasturelands as a beneficial use of	6
water; and (4) the district court abused its discretion by denying Faykus’s motion for	7
reconsideration.1 We affirm.	8
BACKGROUND	9
{2} 	This appeal arises from a single stream adjudication initiated by the State of	10
New Mexico ex rel. State Engineer for the State of New Mexico (the State)	11
concerning appropriation of water from the Rio Grande River (the River), south of	12
the Elephant Butte Dam and north of Caballo Reservoir. On April 21, 2011, the State	13
sent an offer of judgment to Respondents, recognizing a groundwater right for	14
irrigation of 14.14 acres and a domestic water right, but declining to recognize a	15
1In addition to the matters on appeal, the underlying action concerned subfile
Nos. 28-004-1114 (concerning claimant Steve E. Faykus), 28-004-1117 (concerning
claimants 	Steven 	E. 	Faykus 	and 	the 	Faykus 	Family 	Revocable 	Trust), 	and
28-004-007 (concerning claimant Rio Vista Land Co. LLC). Prior to trial, Claimant
Steven E. Faykus accepted the State’s offer of judgment in subfile No. 28-004-1114
and the special master granted the parties’ joint motion for severance of subfile No.
28-004-1117. Rio Vista Land Co. LLC did not object to the special master’s report
concerning subfile No. 28-004-007 and is not a party to this appeal.

3
right to divert surface water from the River using a river pump. Respondents timely	1
objected to the offer, and the matter was referred to mediation. No settlement having	2
been reached, on June 24, 2013, the district court referred the subfile proceeding to	3
a special master, pursuant to Rule 1-053(B) NMRA (authorizing appointment of a	4
special master in a non-jury trial “upon a showing that some exceptional condition	5
requires it”).	6
{3} 	Because 	Faykus 	had 	not 	obtained 	a 	permit 	authorizing 	surface 	water	7
appropriation, the issue before the special master was whether Respondents’	8
predecessors in title had diverted surface water for beneficial use sufficient to	9
establish a priority right prior to 1907. See N.M. Const. art. XVI, § 1 (“All existing	10
rights to the use of any waters in this state for any useful or beneficial purpose are	11
hereby recognized and confirmed.”); NMSA 1978, § 72-1-2 (1907) (stating that	12
“[b]eneficial use shall be the basis, the measure and the limit of the right to the use	13
of water” and requiring all claims of pre-1907 priority to be demonstrated by	14
evidence of beneficial use); see also Walker v. United States, 2007-NMSC-038,	15
¶¶ 22-24, 142 N.M. 45, 162 P.3d 882 (stating that New Mexico follows the doctrine	16
of prior appropriation, which holds that “water rights are both established and	17
exercised by beneficial use”). Following a three-day trial, the special master	18
determined that Respondents had not met their burden of establishing their claimed	19
water rights by a preponderance of the evidence because they were unable to	20

4
demonstrate pre-1907 diversion of the River’s surface waters for beneficial use on	1
the specific tracts of land that currently make up the subfile property. The special	2
master further found that, to the extent Respondents had established a pre-1907	3
surface water right, such right had been forfeited or abandoned by nonuse occurring	4
between 	1903 	and 	1938. 	Respondents 	objected 	to 	the 	special 	master’s	5
recommendation 	on 	April 	22, 	2016. 	The 	district 	court 	heard 	arguments 	on	6
Respondents’ objections on August 31, 2016, but deferred entering judgment for	7
forty-five days to allow Respondents an opportunity to file any relevant motions.	8
Following 	an 	additional 	continuance, 	Respondents 	filed 	their 	motion 	for	9
reconsideration of the special master’s report on December 30, 2016, arguing that	10
newly discovered evidence would demonstrate that Respondents had established	11
pre-1907 surface water rights, the rights had not been abandoned or forfeited, the	12
special master had misinterpreted certain exhibits, and the special master had	13
improperly required Respondents to produce site-specific evidence of beneficial	14
water use.	15
{4} 	Following a hearing on the motion, the district court denied Respondents’	16
motion for reconsideration, adopted the findings of the special master, and entered	17
judgment in conformity with the special master’s determination that Respondents	18
were entitled to groundwater irrigation and domestic water rights but not to surface	19
water rights appurtenant to the subfile property. Respondents appealed.	20

5
DISCUSSION	1
{5} 	Respondents’ first two points of error concern whether substantial evidence	2
supports the special master’s findings of fact. As a threshold matter we consider	3
whether, as the State contends, Respondents waived any such arguments because	4
they failed to point to evidence in the record supportive of the special master’s	5
findings, in contravention of Rule 12-318(A)(3) NMRA. See id. (stating that “[a]	6
contention [on appeal] that a verdict, judgment, or finding of fact is not supported	7
by substantial evidence shall be deemed waived unless the summary of proceedings	8
includes the substance of the evidence bearing on the proposition”). Respondents’	9
brief in chief includes twenty-seven specific factual assertions, none of which	10
include the facts relied upon by the special master in making his determination that	11
Respondents 	had 	not 	established 	a 	pre-1907 	surface 	water 	right. 	Instead,	12
Respondents recite only those factual assertions that were either peripheral to, or in	13
contravention of, the evidentiary basis of the special master’s determination that no	14
surface water right should be adjudicated in this matter. Respondents’ reply brief	15
does nothing to rectify this omission. We agree with the State that Respondents	16
failed to comply with Rule 12-318(A)(3). See Hourigan v. Cassidy, 2001-NMCA-	17
085, ¶ 18, 131 N.M. 141, 33 P.3d 891 (stating that, in a brief attacking the sufficiency	18
of the evidence, the defendant’s failure to recite evidence in support of the verdict is	19

6
“not acceptable” as “[a]ppellate courts should be given the fact-finder’s view of the	1
facts”).	2
{6} 	However, even if we were to exercise our discretion under the rules and	3
consider Respondents’ arguments concerning the sufficiency of the evidence, we	4
conclude the district court did not err in adopting the special master’s findings that	5
Respondents had not established a pre-1907 water right and that, to the extent any	6
such right was established, it was abandoned. We explain.	7
I. 	Substantial Evidence Supported the Special Master’s Determination	8
That Respondents Failed to Establish a Pre-1907 Surface Water Right	9
{7} 	Respondents contend the district court erred by accepting the special master’s	10
finding that the evidence proffered by Respondents was insufficient to establish a	11
pre-1907 priority right based on appropriation of surface water from the River for	12
beneficial use. More specifically, Respondents contend that the special master’s	13
findings should not have been adopted by the district court because (a) the special	14
master failed to accept Respondents’ declarations, patents, and affidavits as prima	15
facie evidence of beneficial use; (b) the special master should have judicially	16
estopped the State from objecting to Respondents’ water rights; and (c) the special	17
master erred in finding that the State had rebutted Respondents’ prima facie	18
evidence. The State argues that substantial evidence supports the special master’s	19
finding that Respondents’ predecessors in title did not apply water to beneficial use	20
prior to 1907 and judicial estoppel is not warranted in this case.	21

7
{8} 	Where, as here, a district court refers a matter to a special master, the district	1
court must accept the special master’s findings of fact unless they are “clearly	2
erroneous.” 2 See Rule 1-053(E)(2). This standard precludes a district court from	3
reweighing the evidence. See State ex rel. Office of State Eng’r v. United States,	4
2013-NMCA-023, ¶¶ 11-13, 16, 296 P.3d 1217 (reviewing the substantial evidence	5
doctrine and concluding that “the district court [can] reject the special master’s	6
findings of fact only if they [are] not supported by substantial evidence”); State ex	7
rel. Martinez v. Lewis, 1994-NMCA-100, ¶ 4, 118 N.M. 446, 882 P.2d 37 (stating	8
that, in reviewing a substantial evidence claim, the court “may not reweigh the	9
evidence or retry a disputed issue to reach a different result if there is evidence	10
supporting the decision of the trial court”). “The [special] master’s findings are	11
presumed to be correct and so far as they depend upon conflicting evidence, or upon	12
the credibility of witnesses, or so far as there is any testimony consistent with the	13
findings, they must be treated as unassailable.” State ex rel. Office of State Eng’r,	14
2013-NMCA-023, ¶ 27 (omission, alteration, internal quotation marks, and citation	15
omitted). The district court reviews a special master’s conclusions of law de novo.	16
Id. ¶ 17. On appeal, we review the decision of the district court using the same	17
standards: we determine whether the special master’s findings of fact are supported	18
2Respondents appear to incorrectly assert that the district court’s adoption of
the special master’s findings should be subject to an abuse of discretion standard of
review.

8
by substantial evidence and review legal determinations de novo. Id. ¶¶ 17-18.	1
“Substantial evidence is relevant legal evidence which a reasonable person would	2
accept as adequate to support a conclusion and it is that which establishes facts from	3
which reasonable inferences may be drawn.” Durrett v. Petritsis, 1970-NMSC-119,	4
¶ 10, 82 N.M. 1, 474 P.2d 487.	5
A. 	Respondents’ Prima Facie Evidence	6
{9} 	At trial, Respondents offered two land office patents—the Arons and Baldez	7
patents—and a declaration of surface water rights filed in 1974 with the Office of	8
the State Engineer as evidence that Respondents’ predecessors in title irrigated the	9
subfile property and perfected a pre-1907 surface water right. The special master	10
found that Respondents property lies partially within the acreage claimed by the	11
Arons patent and partially within the acreage claimed by the Baldez patent. He found	12
that the Arons patent covered approximately fifty-two acres, of which three acres	13
were cultivated and farmed, and the Baldez patent covered approximately 147 acres,	14
of which five or six acres were farmed. However, the special master found that none	15
of the evidence at trial specified the location of the acreage farmed by Arons or	16
Baldez, and it was therefore impossible to determine whether the land they cultivated	17
and irrigated fell within the subfile properties.	18
{10} 	Next, 	the 	special 	master 	considered 	the 	declaration 	of 	Respondents’	19
predecessor in title, Robley Hedrick, which was filed in 1974 pursuant to NMSA	20

9
1978, Section 72-1-3 (1961). Contrary to Respondents’ claim, the special master	1
specifically found that the declaration constituted prima facie evidence that a pre-	2
1907 surface water right to irrigate thirty acres had been perfected on the subfile	3
property. However, he determined that the State effectively rebutted this evidence	4
with a survey of irrigation published in 1896 (the Follett Report). The Follett Report	5
contained no discussion of irrigation practices in the area of the subfile property and	6
described two ditches in the township and range within which the property was then	7
located as “washed out and abandoned in 1884.”3
8
{11} 	The prima facie evidence having been rebutted, the special master then	9
determined that Respondents had failed to prove each element of their water rights	10
by a preponderance of the evidence. He found the land patent records, in light of the	11
Follett Report, failed to establish that the irrigation and farming undertaken by Arons	12
and Baldez was sufficiently sustained to establish a water right. The special master	13
also determined that “[a]lthough the affidavits [offered in support of the Hedrick	14
declaration] suggest that irrigated farming was taking place around the Hot Springs	15
area 4 in the early twentieth century, only an attenuated reading would indicate that	16
3In his conclusions of law, the special master cites factual finding No. 26 as
evidence rebutting the prima facie evidence of a pre-1907 surface water right created
by the Hedrick declaration. 	This appears to have been in error, as factual finding
No. 26 concerns evidence of post-1907 water use—specifically a 1916 survey,
stating that “cultivation has been abandoned for a number of years.”
4Hot Springs is the town currently known as Truth or Consequences, New
Mexico.

10
farming was taking place in the vicinity of the [s]ubfile [p]roperties prior to 1907.”	1
Moreover, the special master found that Respondents had failed to demonstrate that	2
the acreage farmed by Arons and Baldez corresponded to the area where the subfile	3
properties are currently located, nor had they proven the amount of irrigated acreage	4
currently claimed, given that Arons and Baldez had only claimed to farm twelve to	5
thirteen acres and Respondents claim a right to irrigate twenty-five acres.	6
{12} 	Respondents do not dispute most of these facts. Importantly, Respondents do	7
not contest the factual basis for the special master’s determination that the land	8
records and affidavits failed to identify the specific acreage and location of irrigation	9
and farming prior to 1907. Instead, Respondents argue the State should have been	10
judicially estopped from denying the existence of Respondents’ water rights, and the	11
special master erred by concluding the Follett Report rebutted Respondents’ prima	12
facie evidence of beneficial use.	13
B. 	Estoppel	14
{13} 	Respondents assert on appeal that the district court erred by failing to	15
judicially estop the State from contesting Respondents’ water rights. The doctrine of	16
judicial estoppel prohibits a party from maintaining inconsistent positions in a	17
judicial proceeding, whereas equitable estoppel precludes a litigant from asserting a	18
claim against an opposing party if the litigant, by words or conduct, misrepresented	19
a material fact and the opposing party relied upon that misrepresentation to its	20

11
detriment. Gallegos v. Pueblo of Tesuque, 2002-NMSC-012, ¶¶ 23-24, 132 N.M.	1
207, 46 P.3d 668. Neither doctrine applies here.	2
{14} 	The essence of Respondents’ estoppel claim is that the State “accepted the	3
Hedrick declaration in 1974” by failing to timely contest it, but now improperly	4
denies the water rights declared therein. However, the special master found the	5
State’s failure to contest the Hedrick declaration in 1974 did not amount to it taking	6
a position on Hedrick’s claimed rights, and we agree. The declaration contained	7
express language stating that the government’s “[a]cceptance [of the declaration] for	8
filing does not constitute approval or rejection of the claim.” Moreover, Respondents	9
failed to demonstrate that the State made any misrepresentation related to the	10
declaration or the rights at issue, or that they or their predecessors in title relied upon	11
any words of, or conduct by, the State suggesting the validity of the claimed rights.	12
Finally, any contention that the State should be estopped from denying Respondents’	13
water rights because it delayed in contesting the Hedrick declaration is contrary to	14
New Mexico law. See State ex rel. Erickson v. McLean, 1957-NMSC-012, ¶ 32, 62	15
N.M. 264, 308 P.2d 983 (stating that “[t]he general rule is[] that neglect or omission	16
of public officers to do their duty cannot work an estoppel against the state”). Thus,	17
we hold the State was not estopped from asserting its claims below.	18

12
C. 	The State’s Rebuttal Evidence	1
{15} 	Curiously, Respondents simultaneously contend the Follett Report could not	2
rebut the prima facie evidence of beneficial use prior to 1907 because it “contains	3
no evidence or facts related to the [s]ubject [l]and” and that it “supported use of	4
water in the area of the [s]ubject [l]and, when it stated there were ditches in District	5
16, wherein the [s]ubject [l]and is located.” Putting aside this logical inconsistency,	6
at best Respondents’ argument amounts to an assertion that the special master	7
improperly weighed the Follett Report because he focused on the fact that the ditches	8
in or near the subfile property appeared to be washed out and abandoned, rather than	9
that they existed at all. We will not reject the special master’s findings of fact on the	10
grounds that the evidence might have been weighed differently. See State ex rel.	11
Reynolds v. Lewis, 1964-NMSC-095, ¶ 4, 74 N.M. 442, 394 P.2d 593 (stating that	12
“[t]he fact that there may have been contrary evidence which would have supported	13
a different finding does not permit [a reviewing court] to weigh the evidence”).	14
{16} 	Respondents also claim that, because the Follett Report was published in	15
1896, it “could not create a fact question relating to water use between 1896 and	16
March 19, 1907.” But this misstates the evidence and its import. Respondents’	17
evidence of beneficial use consisted of imprecise land patent records from the 1880s	18
and a 1974 declaration that stated that beneficial use began “prior to 1907.” The	19
special master found the Follett Report rebutted this evidence because it described	20

13
ditches in the area as “washed out and abandoned” in the mid-1880s. Given the	1
imprecision of the prima facie evidence of beneficial use, the Follett Report was	2
sufficient to raise a reasonable inference that appropriation on the subfile property	3
was at best irregular. See Durrett, 1970-NMSC-119, ¶ 10 (stating that substantial	4
evidence includes “that which establishes facts from which reasonable inferences	5
may be drawn”). It was therefore not error for the special master to then proceed to	6
a weighing of the evidence. See State ex rel. Martinez, 1994-NMCA-100, ¶ 9 (“At	7
most, admission of [declarations filed pursuant to Section 72-1-3] would satisfy [the	8
a]ppellants burden of going forward; it would satisfy [the a]ppellant’s burden of	9
proof only if not rebutted by the state.”).	10
II. 	Substantial Evidence Supported That, to the Extent Any Pre-1907 Water	11
Rights Were Perfected, They Were Abandoned or Forfeited by 1938	12
{17} 	Respondents next argue substantial evidence did not support the special	13
master’s finding that any water right perfected by Respondents’ predecessors in title	14
was abandoned or forfeited by 1938. Respondents contend the survey map the	15
special master “mainly relied upon” in making this finding did not include the subfile	16
property and therefore could not provide evidence of nonuse. They further argue that	17
an aerial photograph taken in 1935 that was proffered by the State to demonstrate an	18
absence of irrigation did not constitute such evidence because it was considered only	19
for evidence of row cultivation and not for evidence of irrigation of native grasses	20
for pasturage. The State responds that the special master’s findings of abandonment	21

14
and forfeiture were supported by substantial evidence, including contemporaneous	1
professional surveys and photographs.	2
{18} 	To demonstrate abandonment of a water right, a party must show actual	3
abandonment and either an express or implied intent to relinquish the right. State ex	4
rel. Reynolds v. S. Springs Co., 1969-NMSC-023, ¶ 7, 80 N.M. 144, 452 P.2d 478.	5
“The failure to use a water right for an unreasonable time is evidence of the intention	6
to abandon it [.]” Id. ¶ 8. By statute, a water right is deemed forfeited if it is not used	7
beneficially for four years. See NMSA 1978, § 72-5-28(A) (2002).	8
{19} 	The special master found the State proved by clear and convincing evidence	9
that the subfile properties were not irrigated between 1903 and 1938 and were	10
therefore subject to abandonment and/or forfeiture. See State ex rel. Reynolds, 1969-	11
NMSC-023, ¶¶ 8, 22 (stating “[t]he failure to use a water right for an unreasonable	12
time is evidence of the intention to abandon it” and citing approvingly authorities	13
from 	other 	jurisdictions 	finding 	periods 	of 	forty, 	thirty, 	and 	eighteen 	years	14
constituted 	unreasonably 	long 	periods 	of 	nonuse). 	Contrary 	to 	Respondents’	15
suggestion, the special master did not rely primarily on a single map as evidence of	16
non-irrigation; he found that none of the surveys, maps, or photographs depicting	17
the area in and around the subfile properties during this period showed signs of	18
irrigation or cultivation. Respondents’ contention that the aerial photograph could	19

15
not serve as evidence of nonuse because the State’s witness5 examined it only for	1
evidence of row cultivation is also misplaced. The testimony of the witness was not	2
as narrow as Respondents suggest. The witness concluded that the 1935 photograph	3
showed no indication of “irrigation, cultivation or beneficial use of water” on the	4
subfile property, and that the type of vegetation visible on the photograph indicated	5
“decades of nonuse of water for irrigation purposes.” The special master adopted	6
these findings in similarly broad terms. The special master was in the best position	7
to weigh the evidence and the credibility of witnesses at trial, and it was not error	8
for the district court to find that substantial evidence supported his findings of	9
abandonment or forfeiture. See State ex rel. Office of State Eng’r, 2013-NMCA-023,	10
¶¶ 12, 16.	11
III. 	The Special Master Did Not Err by Failing to Consider Irrigation of	12
Native Grasses as a Beneficial Use of Surface Waters on the Subfile	13
Property	14
{20} 	Respondents next argue that the special master failed to consider irrigation of	15
native grasses as evidence of beneficial use on the subfile property.6 As we have	16
5Respondents contend Mr. John Thomas Verploegh “misinterpreted the 1935
[a]erial [p]hotograph,” but Mr. Verploegh did not testify as to the content of the
aerial photographs introduced by the State. It was Mr. James Hangan who testified
about them, and it was this testimony the special master relied upon in finding the
photographs provided evidence of nonuse.
6 This issue was not raised at trial and Respondents appear never to have
sought a ruling from either the special master or the district court on the question of
whether irrigation of native grasses, if demonstrated, would satisfy Respondents’
burden. However, Respondents did briefly raise this issue in their motion for

16
indicated, the special master’s finding that Respondents had failed to demonstrate	1
beneficial use of surface water on the subfile properties during the early part of the	2
twentieth century was not narrowly addressed to cultivation or farming. Respondents	3
pointed to nothing in the record that supports the assertion that the State and the	4
special master “recognized only row-crop irrigation as beneficial use,” and we will	5
not search the record on their behalf for such support. See Santa Fe Expl. Co. v. Oil	6
Conservation Comm’n, 1992-NMSC-044, ¶ 11, 114 N.M. 103, 835 P.2d 819 (stating	7
that where a party fails to cite any portion of the record to support its factual	8
allegations, the Court need not consider its argument on appeal). To the extent	9
Respondents’ reference that “flood irrigation” amounts to a claim that the special	10
master erred by searching for evidence of diversion of surface waters for the purpose	11
of irrigation, we disagree. Respondents contend that the New Mexico Constitution	12
and Sacramento Grazing Ass’n, Inc. v. United States, 135 Fed. Cl. 168 (Fed. Cl.	13
2017), stand for the proposition that “it is beneficial use–not diversion–that creates	14
a water right.” This misstates applicable law. It is true that, in Sacramento Grazing,	15
the United States Court of Federal Claims stated that “[u]nder New Mexico law, it	16
reconsideration and the district court considered it in its denial of the motion.
Accordingly, the issue was properly preserved. See State ex rel. Children, Youth &
Families Dep’t v. Kathleen D.C., 2007-NMSC-018, ¶¶ 9-10, 141 N.M. 535, 157 P.3d
714 (holding that, where party did not raise issue during adjudicatory proceeding,
but did raise it on post-trial motions, trial court was alerted and issue was preserved
for appeal).

17
is beneficial use–not diversion–that creates a water right.” Id. at 201. However, the	1
water right at issue in that case was a stock water right, and the court clarified that	2
the “requirements to establish an irrigation water right are different than those	3
concerning beneficial use of stock or range water.” 	Id. 	While both uses are	4
“beneficial” for purposes of establishing or maintaining a water right, id., proof of	5
irrigation requires proof of diversion. See id. at 200 (“Since the use of water for	6
irrigation is appurtenant to land, it is logical that the New Mexico courts required	7
diversion, i.e., a man-made construction to establish the right to beneficial use of	8
water for those purposes.”). Respondents only asserted an irrigation right on	9
appeal—whether to cultivate crops or to water natural grasses for pasturage.	10
Accordingly, it would not have been error had the special master required evidence	11
of diversion to demonstrate beneficial use from 1903 through 1938. See State ex rel.	12
Reynolds v. Miranda, 1972-NMSC-003, ¶¶ 7-9, 83 N.M. 443, 493 P.2d 409 (holding	13
that man-made diversion and intention to apply water to beneficial use is necessary	14
to claim appropriation rights for agricultural purposes and stating that “grazing on	15
and harvesting of grasses does not constitute appropriation of the water”). However,	16
we see no evidence in the record, and Respondents identified none, that the special	17
master made such a requirement. Respondents’ third point of error is without merit.	18

18
IV. 	The District Court Did Not Abuse Its Discretion in Denying Respondents’	1
Motion for Reconsideration	2
{21} 	Respondents’ final argument is that the district court erred when it denied	3
Respondents’ motion for reconsideration. The motion advanced three separate	4
claims, but Respondents challenges only the district court’s determination that a new	5
trial based on newly discovered evidence was not warranted because the evidence	6
could have been discovered prior to trial with the exercise of due diligence. The	7
parties agree with the district court that the motion for reconsideration is governed	8
by Rule 1-060(B)(2) NMRA. See Pena v. Westland Dev. Co., 1988-NMCA-052,	9
¶ 13, 107 N.M. 560, 761 P.2d 438 (concluding that, in a proceeding before a special	10
master where evidence is discovered after the proceeding and a party seeks to reopen	11
the proceeding, the proper framework for analyzing the request is Rule 1-060(B)(2)).	12
We review the district court’s denial of Respondents’ motion for an abuse of	13
discretion. See Pena, 1988-NMCA-052, ¶ 14.	14
{22} 	To prevail on a Rule 1-060(B)(2) motion, a party must demonstrate “(1) the	15
new evidence would probably change the result; (2) it has been discovered since the	16
trial; (3) it could not have been discovered before trial through the exercise of due	17
diligence; (4) it is material to the issues in the case; (5) it is not merely cumulative;	18
and (6) it is not merely impeaching or contradictory.” Pena, 1988-NMCA-052, ¶ 15.	19
Here, the new evidence advanced by Respondents consisted primarily of publicly	20
available tax records purporting to value the subject property as agricultural land	21

19
with permanent water. Although Respondents asserted that many publicly held tax	1
records from the nineteenth and early twentieth century were moved, lost, or	2
destroyed, they failed to articulate a reason for their failure to obtain them prior to	3
trial.	4
{23} 	The 	district 	court 	denied 	Respondents’ 	motion 	on 	the 	grounds 	that	5
Respondents had not established that the newly discovered evidence could not have	6
been found prior to trial with the exercise of due diligence and, while the evidence	7
might be probative of the issues in dispute, the court could not say that the evidence	8
would “probably change the result” of the proceeding. Respondents assert on appeal	9
that they were “ignorant of the tax records that were more than 100 years old” but	10
again do not offer any reason why they were unable to identify them prior to trial.	11
Instead, Respondents contend it was the State’s responsibility to discover and	12
produce the tax records at issue, pursuant to NMSA 1978, §§ 72-4-13 (1982), -15,	13
and -17.	14
{24} 	Nothing in the plain language of the statutes cited by Respondents suggests	15
that the State is obligated to prove a water right asserted by a subclaimant. To the	16
contrary, 	the 	statutory 	scheme 	governing 	stream 	adjudications 	envisions 	an	17
adversarial process in which water rights claimants are joined as parties so that they	18
may assert their rights in district court. See 	§ 72-4-17 (authorizing suits for	19
determination of water rights in district court). Even if the State were so obligated,	20

20
Respondents have failed to demonstrate why a lack of diligence by the State should	1
excuse Respondents’ own lack of diligence. They point to no authority in support of	2
this contention, and we therefore assume none exists. Curry v. Great Nw. Ins. Co.,	3
2014-NMCA-031, ¶ 28, 320 P.3d 482 (“Where a party cites no authority to support	4
an argument, we may assume no such authority exists.”).	5
{25} 	Finally, even if Respondents’ failure to discover the tax records at issue is	6
justifiable under the circumstances, the district court’s denial of Respondents’	7
motion was predicated upon an alternate, independently sufficient basis: the court’s	8
determination that the evidence would not “probably change the result” of the	9
proceeding. See Pena, 1988-NMCA-052, ¶ 15 (listing as one of the elements to be	10
satisfied for the granting of a new trial on the basis of newly discovered evidence	11
that the evidence “would probably change the result.”). The district court determined	12
that, while the newly discovered evidence might strengthen Respondents’ claim, in	13
light of the substantial evidence relied upon by the special master, the court could	14
not say that it would likely change the result. We agree. While some of the tax	15
records proffered by Respondents provide evidence of water use on land that	16
includes the subfile property, none of it is specific enough to disturb the special	17
master’s finding that Respondents had failed to identify the location or acreage of	18
surface water use by their predecessors in title. Accordingly, the district court did	19
not err in denying Respondents’ motion for reconsideration.	20

21
CONCLUSION	1
{26} 	For the foregoing reasons, we affirm.	2
{27} 	IT IS SO ORDERED.	3
_________________________________	4
BRIANA H. ZAMORA, Judge	5
WE CONCUR:	6
_________________________________	7
LINDA M. VANZI, Judge	8
_________________________________	9
JACQUELINE R. MEDINA, Judge	10