On July 25th, the New Mexico Supreme Court issued its decision in Bounds v. State of New Mexico affirming an Appellate Court decision holding that New Mexico’s Domestic Well Statute does not violate either the state’s doctrine of prior appropriation in the New Mexico Constitution or the guarantees of due process of law. With the plaintiff unable to show any impairment from the issuance of domestic well permits, the Court was reluctant to cast aside the Domestic Well Statute on the grounds of theoretical injury.
The plaintiff had senior surface water rights in the Mimbres Basin in southwestern New Mexico, a fully appropriated and adjudicated basin. Under the Domestic Well Statute, the State Engineer issues domestic well permits for small amount of uses. Mr. Bounds was concerned that the issuance of domestic well permits would push permitted pumping beyond the capacity of the basin. With the State Engineer unlikely to ever cutback domestic wells in times of inadequate supplies, he argued that continued issuance of domestic well permits would interfere with his senior water rights.
While prevailing at the district court, an appellate court affirmed the Domestic Well Statute with language suggesting that the priority system found in the New Mexico Constitution was a “broad priority principle, nothing more.” The Supreme Court noted that the language created “consternation among the New Mexico water community.” How squishy is the priority principle?
The Supreme Court affirmed the priority principle and harmonized it with the Domestic Well Statute. While the State Engineer issues domestic well permits under the statute, the permits remain subject to the priority system. It found any prediction of non-enforcement by the State Engineer Office speculative.
There are undoubtedly many takeaways from the decision. The ones for me is that demonstrable harm of a right will trump arguments based on potential harm. As in other western states, the priority system remains alive and well.