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Anthony Water & Sanitation District v. Turney6/13/2002
Anthony Water & Sanitation District (AWSD) appeals the district court's dismissal of its appeal from a decision of the New Mexico State Engineer (State Engineer). The district court dismissed the appeal, finding that it lacked jurisdiction because AWSD failed to perfect its appeal pursuant to NMSA 1978, § 72-7-1(C) (1971). We affirm.
AWSD makes two primary arguments: (1) Rule 1-074 NMRA 2002 rather than the statutory provisions, now controls appeals from decisions of the State Engineer, and (2) even if the statute controls, it does not require that all four instances of publication occur within the thirty-day limit for publication. We decline to address the first argument because it was not preserved below, though we harbor doubt about its validity. We disagree with AWSD's position as to the second argument.
Issues regarding the procedure to effectively appeal decisions of the State Engineer have appeared regularly on appellate court dockets over the last twenty-one years. Our Supreme Court and this Court have repeatedly held that the State Engineer and all other parties must be served a notice of appeal within thirty days after receipt of the final decision of the State Engineer. We have also repeatedly held that the district court does not gain jurisdiction over such appeals unless all parties are served within the thirty-day time frame. Section 72-7-1(B); In re Application of Angel Fire Corp., 96 N.M. 651, 652-53, 634 P.2d 202, 203-04 (1981); Derringer v. Turney, 2001-NMCA-075, 5, 131 N.M. 40, 33 P.3d 40; El Dorado Utils., Inc. v. Galisteo Domestic Water Users Ass'n, 120 N.M. 165, 168, 899 P.2d 608, 611 (Ct. App. 1995); In re Application of Metro. Invs., Inc., 110 N.M. 436, 440, 796 P.2d 1132, 1136 (Ct. App. 1990); In re Application No. 0436-A Into 3841, 101 N.M. 579, 581, 686 P.2d 269, 271 (Ct. App. 1984).
Section 72-7-1(B) reads:
Appeals to the district court shall be taken by serving a notice of appeal upon the state engineer and all parties interested within thirty days after receipt by certified mail of notice of the decision, act or refusal to act. If an appeal is not timely taken, the action of the state engineer is conclusive.
Section 72-7-1(C) adds:
The notice of appeal may be served in the same manner as a summons in civil actions brought before the district court or by publication is some newspaper printed in the county or water district in which the work or point of desired appropriation is situated, once a week for four consecutive weeks. The last publication shall be at least twenty days prior to the date the appeal may be heard. Proof of service of the notice of appeal shall be made in the same manner as in actions brought in the district court and shall be filed in the district court within thirty days after service is complete. At the time of filing the proof of service and upon payment by the appellant of the civil docket fee, the clerk of the district court shall docket the appeal.
Article XVI, § 5 of the New Mexico Constitution addresses appeals from decisions of the State Engineer and provides:
In any appeal to the district court from the decision, act or refusal to act of any state executive officer or body in matters relating to water rights, the proceeding upon appeal shall be de novo as cases originally docketed in the district court unless otherwise provided by law.
In pursuing its appeal, AWSD chose to attempt to serve notice of appeal pursuant to the publication provisions of Section 72-7-1(C). AWSD acknowledges that it failed to accomplish all four instances of publication within thirty days of its receipt of the State Engineer's decisio
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