Ranch pleads to be heard
Augustin Plains Ranch owners are asking for the right to pull 54 thousand acre-feet of water out of the ground. The State Engineer, in February, refused to consider their application.
Wednesday, in Socorro, District Court Judge Matt Reynolds heard the ranch’s appeal and the arguments against it. Facing off with John Draper, representing the ranch, were several attorneys representing various protestants who could be negatively affected by the ranch’s use of the water.
Leading off the argument, Bruce Frederick with the New Mexico Environmental Law Center, represented about 80 of the protestants in the case.
“The application doesn’t tell us how, where or when the water will be put to use,” Frederick said. “The application asks for all possible uses. It leaves a lot to the imagination.”
The application filed by the ranch is for 37 wells in Catron County and covers water use in seven counties from municipal uses in Santa Fe and commercial use in Rio Rancho and many others, he said.
“We believe this violates principles of necessity,” Frederick said. “The statute requires you designate use and places. The ranch’s application doesn’t meet these basic requirements. The 54 thousand acre-feet is based on pure speculation.”
He went on to say the application doesn’t even show a need for the water. The ambiguous nature of the application makes providing public notice of intent impossible to provide, doesn’t allow the state engineer to determine if the appropriation will impair rights and is a barrier to the ability of protestants to file protests, Frederick said.
Peter White, another attorney representing other protestants, concurred with Fredrick.
“The state engineer legally dismissed the application because it did not comply with conditions,” White said.
Representing the state engineer’s office, attorney Jonathan Sperber quoted statutes that the engineer used to make the decision not to consider the ranch’s application.
“The approach of the state engineer is to look at the surface water code, not the ground water code,” Sperber said. He quoted statutes which make clear the appropriated water needs to be specifically designated.
Notice was not addressed by the state engineer, Sperber said. The engineer found that notice was sufficient since more than 900 people protested the application.
The other basis the engineer used to turn down the application had to do with another statute which grants the state authority to refuse on the grounds that if approved, the use is contrary to preferred use of water to public policy.
“The only issue before this court is to appeal the state engineer’s decision,” Sperber said. “There has been no hearing on the merits of the application.”
Representing the ranch, Draper had his chance to argue.
He said the surface water code, established in 1907, is not relevant in this case and the ground water statute was established in 1931.
“We have two water codes that differ in procedures,” Draper said. “This is a ground water application, therefore comes under the ground water code.”
Draper asserted the state engineer could not find anything in the application that was not complied with so the engineer resorted in going to the surface water code to refuse the application.
He said there are three criteria the engineer can use to reject an application: whether the water is unappropriated, if the application is contrary to the water law of the state, and if the appropriation is detrimental to the public welfare of the state.
“Not only is he exercising a right he doesn’t have, but he is basing it on something that doesn’t appear in the codes,” Draper said.
Draper said the state engineer has exhibited a disregard of his statutory powers.
“He is trying to create a new power,” Draper said. “To allow this amorphous new power that doesn’t exist is something the courts should not tolerate.”
Fredrick, given a chance to respond to Draper’s assertions, said the state engineer is not an attorney and the issues involved are ones of “form over substance.”
He said there was a hearing on the merits of the application and it was denied.
Frederick also brought up another statute, which, he said, asserts the state engineer will not grant more water than can be drawn on one well on one application. There are 37 wells on the Augustin Plains application.
Frederick said the application covers all possible uses of water and encompasses an area twice the size of New Jersey. When the judge gave him a hard time about using an East Coast example, Fredrick called it 1/4 to 1/3 of New Mexico.
Draper disputed the assertion that only one well can be applied for on each application.
“There is no explicit requirement to foist such an unworkable requirement on applicants,” Draper said.
After asking some questions of the attorneys, Judge Reynolds closed the hearing with a promise to get a judgement out as soon as he was able. He said, he hoped he could respond within 30 days, but he will have his decision out definitely within 60 days.