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Anthony Water & Sanitation District v. Turney6/13/2002
ty-day period and permits the other three publications to be outside that time. Otherwise, AWSD argues, the publication requirement will be nearly impossible to meet, a result the legislature could not have contemplated. Even though AWSD's argument has some surface appeal, on close analysis, it must fail.
Section 72-7-1(B) plainly states that "serving a notice of appeal . . . [must be] within thirty days after receipt . . . of . . . the decision . . . . If an appeal is not timely taken, the action of the state engineer is conclusive." Section 72-7-1(C) just as plainly states that service may be made by either serving in the same manner as summons in civil actions or "publication is some newspaper printed in the county or water district . . . once a week for four consecutive weeks." The first rule of statutory construction is that the plain language of the statute is the primary indicator of legislative intent and is to be followed. See High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, 5, 126 N.M. 413, 970 P.2d 599. Also, if the meaning of a statute is clear, this Court is not to second guess the policy choice made by the legislature. See State ex rel. State Engineer v. Lewis, 121 N.M. 323, 325, 910 P.2d 957, 959 (Ct. App. 1995).
The statute requires service in thirty days. Service is defined as publication four times-once a week for four consecutive weeks. Strict, full compliance with the service-of-notice portion of the statute has long been required by our cases. See Derringer, 2001-NMCA-075, 5, and cases cited therein. El Dorado Utils., Inc. and In re Application of Angel Fire Corp., for example, both required that all parties be actually served with the notice of appeal within the thirty-day time frame of the statute. To be consistent, we believe the statute requires completion of publication within thirty days.
We are not impressed with AWSD's argument about hardship or the impossibility of complying with the statute. While compliance may be difficult, particularly for those who delay preparation until the Engineer's decision is actually received, it is not impossible. AWSD made the conscious choice to serve by publication, rather than serve in the manner of summons in civil actions. AWSD appears to contend that it would have been difficult for it to ascertain the addresses of all of the parties to serve in the manner of summons in civil actions in the thirty days between receipt of the decision and when the notice of appeal was required to be served. However, nothing precluded AWSD from ascertaining addresses during the pendency of the action before the State Engineer or at least when the hearing examiner issued his adverse recommendation, which was September 25, 2000. It took the State Engineer another month to adopt the recommendation, and notice of it was not mailed until November 7 and received on November 13.
The same time could have been profitably used to analyze the ruling and determine whether to appeal. Then, service could have been timely accomplished, even by publication. We note that the plain words of the statute do not require that publication be on the same day of each week. In fact, the legislature may have preferred that publication be made on different days of the week so as to reach the maximum number of people. Thus, in this case, service could have been accomplished in the alternative way provided by statute had AWSD been more efficient.
AWSD also argues that neither the State Engineer nor Elephant Butte Irrigation District (EBID) was prejudiced by the failure of the other parties to receive the statutorily required notice within the statutorily required thirty days because the State Engineer
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