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Anthony Water & Sanitation District v. Turney6/13/2002
n as described in Section 72-7-1(B). In fact, it succeeded in publishing notice only once prior to the statutory deadline for perfecting the appeal. Section 72-7-1(B), (C). As a result the district court specifically held that AWSD failed to perfect service by publication within the thirty days required by Section 72-7-1(B). See also In re Application of Metro. Invs., Inc., 110 N.M. at 441, 796 P.2d at 1137 (" he provisions of Section 72-7-1 insofar as they relate to the method for perfecting an appeal from a decision of the state engineer, are mandatory. Hence the trial courts are without authority to extend a period of time fixed by statute.").
AWSD argues that Rule 1-074, which governs appeals to the district court from administrative agencies, controls the filing of the notice of appeal. Because Rule 1-074 requires only that the notice of appeal be filed in the district court within thirty days from the date of the administrative agency's decision and because AWSD did just that, it contends its notice of appeal was timely filed and it does not matter that all parties were not served within thirty days. AWSD bases its argument on a novel reading of our Supreme Court's decision in Maples v. State, 110 N.M. 34, 791 P.2d 788 (1990). In Maples, the Supreme Court held that on procedural matters such as time limitations for appeals, rules adopted by the Supreme Court governing limitations period for appeal to the judiciary from workers' compensation decisions prevail over an inconsistent statute. Id. at 36, 791 P.2d at 790. AWSD argues that Section 72-7-1 is such an inconsistent statute and that AWSD was therefore required to comply only with the requirements set out in Rule 1-074 to perfect its appeal to the district court. But cf. In re Application of Metro. Invs., Inc., 110 N.M. at 440, 796 P.2d at 1136 (holding that Section 72-7-1 statutory provisions specifically dealing with the time limits for serving notice of appeal from decisions of the state engineer were jurisdictional).
AWSD admits that it did not make this argument below and thus failed to preserve the argument for appeal. Rule 12-216(B) NMRA 2002. AWSD urges us to exercise our discretion under Rule 12-216(B)(1) to consider questions involving general public interest that have not been properly preserved. See also Pineda v. Grande Drilling Corp., 111 N.M. 536, 539, 807 P.2d 234, 237 (Ct. App. 1991). AWSD asserts that addressing the issue would allow this Court to "clear up years of confusion regarding not just appeals from the state engineer, but from all administrative agencies in New Mexico."
We do not agree with AWSD's arguments that this area of New Mexico law is unclear and should be addressed as a matter of discretion pursuant to Rule 12-216(B)(1). As noted above, New Mexico appellate decisions dealing with appeals of State Engineer decisions under Section 72-7-1 have strongly and consistently applied the statutory requirements. In our estimation, the Supreme Court's discussion of In re Application of Angel Fire Corp. in Maples does not confuse the interplay between Rule 1-074 and Section 72-7-1 or cast sufficient doubt on the vitality of our prior cases for us to overlook AWSD's complete failure to make its argument below. This is particularly true inasmuch as Rule 1-074 contemplates an appellate review proceeding in the district court whereas appeals from the State Engineer are constitutionally required to be tried de novo. See N.M. Const. art. XVI, ยง 5. Thus, we question the assertion that State Engineer appeals were simply overlooked when the Supreme Court adopted Rules 1-074 to -077 NMRA 2002.
AWSD's more compelling argument is that Section 72-7-1 only requires one publication within the thir
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