State ex rel. Off. of St. Eng'r v. Romero

Office of the Director New Mexico
08:32:57 2022.12.05 Compilation
'00'07- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2022-NMSC-022

Filing Date: September 26, 2022

No. S-1-SC-37903

STATE OF NEW MEXICO ex rel.
OFFICE OF THE STATE ENGINEER,

Plaintiff-Respondent,

v.

TOBY ROMERO,

Defendant-Petitioner,

and

ELEPHANT BUTTE IRRIGATION DISTRICT et al.,

Defendants.

ORIGINAL PROCEEDING ON CERTIORARI
James J. Wechsler, Presiding Judge

Domenici Law Firm, P.C.
Peter V. Domenici, Jr.
Reed C. Easterwood
Albuquerque, NM

for Petitioner

New Mexico Office of the State Engineer
Gregory C. Ridgley, General Counsel
Richard Arthur Allen, Deputy General Counsel
A. Nathaniel Chakeres, Deputy General Counsel
Santa Fe, NM

Martha Clark Franks, Special Assistant Attorney General
Fort Collins, CO

for Respondent

OPINION
THOMSON, Justice.

{1} According to our Constitution and our courts, beneficial use of water is “the basis,
the measure and the limit” of a continued water right. N.M. Const. art. XVI, § 3; State ex
rel. Reynolds v. S. Springs Co., 1969-NMSC-023, ¶ 15, 80 N.M. 144, 452 P.2d 478.
With that in mind, we answer whether an owner of a groundwater right may forfeit part
or all of a claimed water right and whether any use, no matter how small, preserves the
right to the whole. Petitioner Toby Romero argues that his use of three acre-feet per
year of water preserves the claimed 394.85 acre-feet per year water right.
Synchronizing the legislative relationship and legal history of groundwater and surface
water forfeiture statutes with a plain reading of our Constitution supports only one
conclusion: New Mexico’s groundwater forfeiture statute allows for partial forfeiture. See
NMSA 1978, § 72-12-8(A) (2002) (groundwater forfeiture); NMSA 1978, § 72-5-28(A)
(2002) (surface water forfeiture). Accordingly, we conclude that substantial evidence
supports the special master’s findings of nonuse by Petitioner resulting in forfeiture. The
Court of Appeals interpretation of the groundwater forfeiture statute is affirmed, albeit for
different reasons. See State ex rel. Off. of State Eng’r v. Romero, 2020-NMCA-001, 455
P.3d 860.

I. BACKGROUND

{2} The issue on appeal results from an order in the Lower Rio Grande Adjudication
where the Office of the State Engineer (OSE) denied Petitioner’s claim of ownership
over a water right associated with “railroad operations” (Railroad Right) in the now-
defunct town of Cutter. 1 The town of Cutter was established in the late nineteenth
century as a mining community. A railroad depot was built around 1880 to facilitate the
shipping of ore and cattle. The railroad depot’s well (Well) was initially used to supply
water to steam engines that powered the trains and was also used to water a local
commodity, livestock. Soon after the mines shut down, the railroad depot shut down,
and the need for the railroad to use the Well to service the steam locomotives
diminished. The railroad’s Well use eventually ended in 1960. Soon thereafter, the town
of Cutter itself ceased to exist.

{3} In 1994, the railroad conveyed a parcel of land to Petitioner that included the
Well and the water rights associated with the Well. 2 Four years after the railroad’s
conveyance, Petitioner filed a declaration of water right with the OSE claiming 394.85
acre-feet of groundwater per year for both “railroad and livestock purposes.” His
calculation of the Railroad Right was based on the “maximum amount of railroad traffic”

1Petitioner asked this Court to determine if it was appropriate to remand a second issue to the Court of

Appeals: whether the Railroad Right, as quantified by the special master, was abandoned. However,
Petitioner makes no argument and provides no facts in the briefing to help us answer that question.
Accordingly, we do not reach the issue. Bounds v. State ex rel. D’Antonio, 2013-NMSC-037, ¶ 10 n.1, 306
P.3d 457.
2The factual record on which the parties rely involves several transfers of title as well as disputes about

whether the Railroad Right was actually included in the land transfer. In addition, the amount of water at
issue in the Railroad Right was disputed. However, these are not the central issues of the appeal, and we
omit much of the discussion of these issues.
passing through Cutter during the “peak” of the railroad’s operation in 1944. This
calculation was grossly different from a hydrographic survey of the Lower Rio Grande
Basin conducted three years later, which calculated the Well’s usage as three acre-feet
per year for livestock watering.

{4} While awaiting judgment on the Railroad Right, Petitioner was joined in the
Lower Rio Grande stream adjudication in 2007. After Petitioner was joined in the stream
adjudication but before he received the OSE decision, he attempted to market the
Railroad Right in 2009 to the Spaceport America Project and submitted an application to
the OSE for change of water usage. The OSE did not reply to his application, and
Petitioner eventually withdrew it. In June 2010, Petitioner received an offer of judgment
from the OSE finding that Petitioner had no water right.

{5} Petitioner rejected the OSE offer of judgment, and a hearing was set before a
special master to determine what water right, if any, Petitioner had. The special master
calculated the Railroad Right at 107.53 acre-feet per year and found evidence to
support three acre-feet per year usage of water for livestock purposes based on the
hydrographic survey and witness testimony. Regarding the use of the water at issue,
the special master made two findings. First, “water from the Well was not used between
1960 and June 1, 1965 for any purpose other than to water livestock.” Second, “The fact
that the Railroad Right was used to water livestock does not prevent forfeiture of the
remainder of the right.” Finding no evidence of water usage for railroad purposes during
these same periods, the special master relied on a Utah case to construe New Mexico’s
groundwater forfeiture statute to allow for partial forfeiture.

{6} In reaching these findings, the special master relied in part on Petitioner’s expert
report, which confirmed that the steam locomotive era ended in 1955. Exhibits also
demonstrated that the railroad company in this case had converted from steam to diesel
by 1960 and in doing so had closed the Cutter train depot and removed its crews from
Cutter. The railroad’s “right-of-way map” depicted the Well as “retired in place” as of
1959. The State presented historical records suggesting that “1960 was the last year of
regular main line, standard gauge steam operations in the United States.” In addition, a
witness testified to repairing the Well in the early sixties, “’60 to ’64,” and stated that it
had been “two or three years since it had been run.” The witness remarked that the
purpose of the repair was not to operate a steam locomotive but so the owner could
“water some livestock that he had out there.”

{7} Petitioner objected and filed a motion to set aside the special master’s report and
order recommending only the right to water livestock. He argued that although the water
was not used for railroad purposes, it was used for livestock purposes and therefore
that this partial use negated forfeiture of the larger Railroad Right. The core of
Petitioner’s argument is that usage of a three acre-feet per year livestock right
preserved a right to seventy percent of his claimed 394.85 acre-feet per year Railroad
Right. The district court reviewed the special master’s recommendation and concluded
that “substantial evidence supports the special master’s finding” of nonuse. The district
court also accepted the special master’s interpretation of the groundwater forfeiture
statute that allowed partial forfeiture.
{8} The Court of Appeals affirmed the district court, finding that the special master’s
reading of the groundwater statute was consistent with legislative intent, our
Constitution, and our state’s historic approach to the preservation of water, in particular
the recognition of partial forfeiture. See Romero, 2020-NMCA-001. The Court of
Appeals found the statute ambiguous because it “refers to forfeiture of ‘the water rights’
without specifying whether such forfeiture may extend to just a portion of an
appropriator’s water rights.” Id. ¶ 21. We acknowledge that the statute’s varying use of
the terms “water,” “waters,” “water right,” and “water rights,” creates some ambiguity.
See § 72-12-8(A). However, we conclude that analysis of the statute to resolve an
ambiguity is unnecessary. These terms might refer to each water right by its individual
purpose. Or the terms together might refer to a collection of the water rights related to
an owner’s water permit. We agree with the Court of Appeals that an analysis of
legislative intent and history supports a finding that the groundwater forfeiture statute
allows for partial forfeiture of water rights. See Romero, 2020-NMCA-001, ¶¶ 19-31.
However, there is only one constitutionally valid interpretation of these water forfeiture
statutes, and that is through the constitutionally acknowledged doctrine of beneficial
use.

II. DISCUSSION

A. Standard of Review

{9} The purely legal question, whether partial forfeiture exists in our Constitution or
by statute, requires de novo review. State ex. rel. Off. of State Eng’r v. Elephant Butte
Irrigation Dist., 2012-NMCA-090, ¶ 8, 287 P.3d 324 (citing City of Santa Fe v. Travelers
Cas. & Sur. Co., 2010-NMSC-010, ¶ 5, 147 N.M. 699, 228 P.3d 483). The OSE has “the
supervision of the apportionment of water in this state.” NMSA 1978, § 72-2-9 (1907), in
this case in accordance with the groundwater and surface water forfeiture statutes.
When, as here, “an agency decision is based upon the interpretation of a particular
statute, the court will accord some deference to the agency’s interpretation, especially if
the legal question implicates agency expertise.” Fitzhugh v. N.M. Dep’t of Labor, Emp.
Sec. Div., 1996-NMSC-044, ¶ 22, 122 N.M. 173, 922 P.2d 555. However, the court is
not bound by an agency decision and “may always substitute its interpretation of the law
for that of the agency[] because it is the function of the courts to interpret the law.” Id.
(internal quotation marks and citation omitted).

{10} Finally, although this Court reviews the application of statutory provisions de
novo, we review the special master’s factual findings, which the district court accepted,
for substantial evidence. See State ex rel. Reynolds v. Lewis, 1973-NMSC-035, ¶¶ 27-
28, 30, 84 N.M. 768, 508 P.2d 577.

B. Beneficial Use in New Mexico

{11} The doctrine requiring beneficial use of water, which forms the foundation of this
opinion, originates from territorial legislation. The 1907 water act provides, “All natural
waters flowing in streams and water courses . . . belong to the public and are subject to
appropriation for beneficial use. . . . Beneficial use shall be the basis, the measure and
the limit of the right to the use of water . . . .” 1907 N.M. Laws, ch. 49, §§ 1, 2. Likewise,
our territorial court recognized forfeiture of a water right as an important component of
beneficial use:

[T]he failure to beneficially use all or any part of the water for which a right
of use has vested, for the purpose for which it was appropriated or
adjudicated, for a period of four years, shall cause the reversion of such
unused water to the public, and it shall be regarded as unappropriated
public water.

Hagerman Irrigation Co. v. McMurry, 1911-NMSC-021, ¶ 4, 16 N.M. 172, 113 P. 823.

{12} The language of Article XVI, Section 3 of the New Mexico Constitution,
“Beneficial use shall be the basis, the measure and the limit of the right to the use of
water,” derives from the 1907 water act. That provision captures the purpose of our
water laws, which is “to encourage use and discourage nonuse or waste.” S. Springs
Co., 1969-NMSC-023, ¶ 15. Our courts recognize that the concept of water forfeiture is
itself derived from the beneficial use doctrine because the “continuance of the title to a
water right is based upon continuing beneficial use.” Elephant Butte Irrigation Dist.,
2012-NMCA-090, ¶ 14 (internal quotation marks and citation omitted). The language of
both the groundwater and surface water forfeiture statutes concerning beneficial use
and reversion of the water to the public after continuous nonuse tracks our
Constitution’s purposes of encouraging water use and discouraging waste. See id. ¶¶
14-15; see also, e.g., N.M. Const. Art. XVI, § 2 (“The unappropriated water of every
natural stream, perennial or torrential, within the state of New Mexico, is . . . subject to
appropriation for beneficial use, in accordance with the laws of the state.” (emphasis
added)).

{13} Because beneficial use is a grounding principle in our water law policy, the Court
has rejected other theories of water ownership that are incompatible with the beneficial
use provision of Article XVI, including theories that ignore the possibility that users can
forfeit their rights. For example, in State ex rel. Martinez v. City of Las Vegas, this Court
declined to recognize a pueblo water right where a successor-in-interest to a
colonization pueblo may “take as much water . . . as necessary for municipal purposes”
and instead “conclude[d] that . . . rights must be determined by prior appropriation
based on beneficial use.” 2004-NMSC-009, ¶ 1, 135 N.M. 375, 89 P.3d 47. The Court
reasoned that pueblo rights use a nonappropriation-based method of allocating water
rights, which creates water rights not measured by beneficial use and contravenes the
policies for discouraging nonuse that came from Article XVI. Id. Martinez makes clear
that forfeiture is an important component of the beneficial use doctrine:

Forfeiture . . . is an essential punitive tool by which the policy of our
constitution and statutes is fostered, and the waters made to do the
greatest good to the greatest number. Forfeiture prevent[s] the waste of
water—our greatest natural resource. The pueblo right subverts these
critical policies.
Id. ¶ 37 (alteration in original) (internal quotation marks and citations omitted).

{14} Thus, forfeiture is an essential enforcement mechanism for Article XVI’s
beneficial use provision. Just as the pueblo rights discussed in Martinez contravened
the purpose of Article XVI, the groundwater forfeiture statute, if interpreted to disallow
partial forfeiture, would subvert enforcement of the critical polices of preventing waste
and using water “‘to do the greatest good to the greatest number.’” See Martinez 2004-
NMSC-009, ¶ 36 (concluding that “total loss of use of any amount of water the pueblo
might potentially use in the future . . . interferes with the necessity of utilizing water for
the maximum benefits”). In addition, there is no distinction between partial forfeiture and
forfeiture. Whether a water owner has ceased to use all of the water right or has ceased
to use part of the water right, Article XVI’s admonishment is the same: use is the
measure of the right. Allowing use of a three acre-feet per year water right to preserve
an unused 394 acre-feet per year water right would subvert Article XVI’s requirement
that “[b]eneficial use shall be . . . the measure” of a continuing water right. Therefore, for
Section 72-12-8(A) to conform to the constitutional requirements of Article XVI, we must
interpret the groundwater forfeiture statute to allow for partial forfeiture. Having
established the grounding principle of beneficial use, and in particular the role of
forfeiture in advancing the corresponding policy, we turn to the language of the surface
water and groundwater acts to complete our analysis.

C. Surface Water and Groundwater Acts Are Viewed as a Bundle of Related
Rights, and as Such Their Forfeiture Provisions Must Be Read Together

{15} The groundwater forfeiture statute at issue reads,

When for a period of four years the owner of a water right . . . or the holder
of a permit from the state engineer to appropriate any such waters has
failed to apply them to the use for which the permit was granted or the
right has vested, was appropriated or has been adjudicated, the water
rights shall be, if the failure to beneficially use the water persists one year
after notice and declaration of nonuser given by the state engineer,
forfeited and the water so unused shall revert to the public and be subject
to further appropriation.

Section 72-12-8(A). A separate statute governs the forfeiture of surface water and
contains slightly different language:

When the party entitled to the use of water fails to beneficially use all or
any part of the water claimed by him . . . for a period of four years, such
unused water shall, if the failure to beneficially use the water persists one
year after notice and declaration of nonuser given by the state engineer,
revert to the public and shall be regarded as unappropriated public water.

Section 72-5-28(A). The surface water forfeiture statute explicitly states that failure to
use “all or any part of the water claimed” will result in forfeiture of the unused part of the
water right. Id. Unlike the surface water forfeiture statute, the groundwater forfeiture
statute does not explicitly state that “all or any part” of the water left unused will result in
forfeiture but rather states, “the water so unused shall revert to the public.” Compare §
72-12-8(A), with § 72-5-28(A). The Legislature’s omission of “all or any part of”
language invites the argument advanced by Petitioner that the Legislature did not intend
to allow for partial forfeiture of a groundwater right. The argument is that the differing
language between the groundwater forfeiture statute and the surface water forfeiture
statute indicates a legislative intent to treat the two types of water differently when it
comes to forfeiture; one theory allows partial forfeiture (surface water) and one does not
(groundwater). Petitioner believes that limited use of groundwater for livestock watering
preserved the entire Railroad Right as the groundwater forfeiture statute makes no
allowance for partial forfeiture.

{16} If Petitioner’s reading of the groundwater forfeiture statute prevails, the statute is
placed in direct conflict with the intent and wording of Article XVI. Such a reading would
make the statute unconstitutional. We are obliged to follow the “well-established
principle of statutory construction that statutes should be construed, if possible, to avoid
constitutional questions,” Lovelace Med. Ctr. v. Mendez, 1991-NMSC-002, ¶ 12, 111
N.M. 336, 805 P.2d 603. In addition, “[w]here a statute is susceptible to two
constructions, one supporting it and the other rendering it void, a court should adopt the
construction which will uphold its constitutionality.” Benavides v. E.N.M. Med. Ctr.,
2014-NMSC-037, ¶ 43, 338 P.3d 1265 (internal quotation marks and citation omitted).
There is a high bar for unconstitutionality, and a statute “will not be declared
unconstitutional in a doubtful case, and . . . if possible, it will be so construed as to
uphold it.” Bounds, 2013-NMSC-037, ¶ 11, (internal quotation marks and citation
omitted).

{17} Further, Petitioner’s argument that the groundwater and surface water forfeiture
statutes must be read as completely distinct contravenes the accepted view that “the
Legislature extended the basic principles of the 1907 code to groundwater resources
and that the basic scheme, for the management of both surface water and groundwater,
is still with us today.” G. Emlen Hall, The First 100 Years of the New Mexico Water
Code, 48 Nat. Res. J. 245, 249 (2008) (emphasis added). Practically speaking, the two
types of water are interconnected through a constant exchange: surface water seeping
into the ground, and groundwater percolating to the surface. See Stephen J. Vandas et
al., Water and the Environment, 26 (American Geologic Institute 2002). This interaction
is reflected by New Mexico’s “long and strong tradition of the coordination of ground and
surface water rights.” Jason Anthony Robison and Anthony Dan Tarlock¸ Law of Water
Rights and Resources § 6:30, at 467 (2020) (explaining that in New Mexico
administrative officials measure the impact of groundwater pumping on surface flows).
Starting with the 1907 water act and confirmed by the territorial Supreme Court in
Hagerman Irrigation Co., 1911-NMSC-021, ¶ 4, doctrines of both prior appropriation and
beneficial use have applied to surface waters. Later, the Legislature applied these same
doctrines to groundwater through the 1927 groundwater code, 1929 NMSA, §§ 151-201
to -205 (1927). See 1927 N.M. Laws, ch.181, §§ 1-5. This Court concluded that the
application of beneficial use and prior appropriation to groundwater was “merely
declaratory of existing law.” Yeo v. Tweedy, 1929-NMSC-033, ¶¶ 7-8, 34 N.M. 611, 286
P. 970 (determining the groundwater code to be unconstitutional for technical reasons
but deciding that the code was “merely declaratory of existing law”). In 1958 while
interpreting the state engineer’s power to consider prior appropriations, this Court
applied the doctrine of surface water connectivity. Templeton v. Pecos Valley Artesian
Conservancy Dist., 1958-NMSC-131, ¶¶ 33-34, 47, 65 N.M. 59, 332 P.2d 465. This
doctrine allows for the tracing of an appropriation of surface water to its source,
underground streams. Id. Later, in 1961, the Court applied an analogous doctrine to
groundwater even though there was no statutory equivalent within the groundwater
code. See State ex rel. Reynolds v. Mendenhall, 1961-NMSC-083, ¶ 19, 68 N.M. 467,
362 P.2d 998. The Mendenhall Court confirmed the connectivity of groundwater and
surface water recognized in Yeo, stating that “ground water in its use, appropriation and
administration is affected with all the incidents of surface waters, except for differences
necessarily resulting from the fact that it is found below the surface.” 1961-NMSC-083, ¶
19.

{18} Although the language of the groundwater forfeiture statute does not track the
language of the surface water forfeiture statute, “its history and background reveal a
legislative intent to provide for partial forfeiture.” Romero, 2020-NMCA-001, ¶ 27.
Petitioner’s argument is directly contrary to our established view that “[t]here does not
exist one body of substantive law relating to appropriation of stream water and another
body of law relating to appropriation of underground water.” City of Albuquerque v.
Reynolds, 1962-NMSC-173, ¶ 28, 71 N.M. 428, 379 P.2d 73. Two water codes, one
governing surface water and the other groundwater, do not “imply a legislative intention
that subsequent statutes dealing with underground waters are to be . . . treated entirely
separate and apart as though dealing with two entirely different subjects.” Id.

{19} It is clear that, through the course of interpretation of various groundwater
statutes, this Court has looked to the Legislature’s policies for managing surface water
for guidance. The legal and legislative relationship between groundwater and surface
water, in addition to the constitutional requirement that water rights be measured by
beneficial use, supports the Court of Appeals interpretation that the groundwater
forfeiture statute allows partial forfeiture. Additionally, although the difference between
the two statutes could evidence that the Legislature intended the groundwater and
surface water codes to accomplish different purposes, Petitioner does not assert any
cognizable purpose or present any evidence that the Legislature intended that
groundwater and surface water be treated differently for purposes of forfeiture.

{20} Having established that partial forfeiture of groundwater rights is allowable, we
now address Petitioner’s alternative argument that forfeiture should not apply in this
case because it is only meant to serve as a penalty for deliberate waste or unauthorized
water use. Finally, we examine the special master’s finding of nonuse and forfeiture.

D. Forfeiture Is Allowed for Nonuse, Not Just for Unauthorized Use or
Deliberate Waste

{21} “[T]he continuance of the title to a water right is based upon continuing beneficial
use, and where the right is not exercised for a certain period of time (four years), the
statute declares that the right to the unused portion is forfeited.” S. Springs Co., 1969-
NMSC-023, ¶ 9. There is no basis for Petitioner’s argument that forfeiture is a penalty
reserved for unauthorized use of water or deliberate waste. To the contrary, nonuse is
one of the actions penalized by the forfeiture statute. For example in S. Springs Co., the
owners of the water right failed to obtain use of their claimed water for at least thirty
years. Id. ¶ 8. This Court clarified that “forfeiture as applied to water rights . . . is the
penalty fixed by statute for the failure to do . . . certain acts tending toward the
consummation of a right within a specified time[] or . . . the failure to use the same for
the period specified by the statute.” Id. ¶ 9 (internal quotation marks and citation
omitted). It is clear from S. Springs Co. and other related cases that forfeiture is not only
a punishment for bad acts like waste or unauthorized use of water but also a penalty for
the failure of a water owner to put the water to beneficial use. See id.; see also Elephant
Butte Irrigation Dist., 2012-NMCA-090, ¶¶ 16-17 (applying the forfeiture statute to more
than four consecutive years of nonuse); State ex rel. Reynolds v. Fanning, 1961-NMSC-
058, ¶¶ 6, 15, 68 N.M. 313, 361 P.2d 721 (applying the forfeiture statute to irrigation for
more than four consecutive years from an unapproved well); State ex rel. Erickson v.
McLean, 1957-NMSC-012, ¶¶ 23-26, 62 N.M. 264, 308 P.2d 983 (applying the forfeiture
statute to more than four years of nonbeneficial usage⸻or “continuous nonuse[]
through waste”). Forfeiture as a penalty for nonuse is not a new concept or a new way
of applying the forfeiture statute. Even in the early forfeiture cases, it is plainly stated,
“Nonuse involves forfeiture. A great natural public resource is thus both utilized and
conserved.” Yeo, 1929-NMSC-033, ¶ 20. Therefore, we hold that if the special master
properly found nonuse, the forfeiture statute applies to Petitioner’s water right.

E. The Special Master’s Findings Are Supported by Substantial Evidence

{22} In this case, the special master found that the Well had not been “used between
1960 and June 1, 1965 for any purpose other than to water livestock.” The finding of
more than four years of nonuse was supported by substantial evidence, including
railroad logs, witness testimony, and historical evidence regarding the decline of the
town of Cutter. The evidence described earlier in this opinion included exhibits
demonstrating that the railroad had converted from steam to diesel by 1960. Historical
records revealed that 1960 was the last year of steam operations in the United States.
The railroad’s “right-of-way” map depicted the Well as “retired in place” as of 1959.
While a witness testified to repairing the Well in the early sixties, “‘60 to ‘64,” the same
witness testified that it had been “two or three years since it had been run” and that the
purpose of the repair was so the owner could “water some livestock that he had out
there.” The records and accounts taken together show that substantial evidence
supported a finding of nonuse. Nonuse, as we have said previously, led to forfeiture.

III. CONCLUSION

{23} The special master correctly construed the meaning of Section 72-12-8(A) to
allow for partial forfeiture. The Court of Appeals was correct in finding that the statute
was ambiguous and that the historical relationship between the surface and
groundwater forfeiture statutes supported a harmonious reading of the statutes.
However, we stress that the beneficial use doctrine, enshrined in Article XVI, Section 3
of the New Mexico Constitution, mandates that continuous beneficial use be “the basis,
the measure and the limit of the right to the use of water” and that water not subject to
beneficial use reverts to the public and is subject to appropriation by the state. As such,
beneficial use requires that Section 72-12-8(A) allow for any portion of unused water to
return to the public and be subject to appropriation by the state. Therefore, we affirm.

{24} IT IS SO ORDERED.

DAVID K. THOMSON, Justice

WE CONCUR:

C. SHANNON BACON, Chief Justice

BRIANA H. ZAMORA, Justice

FRANCIS J. MATHEW, Judge
Sitting by designation

ERIN B. O’CONNELL, Judge
Sitting by designation