AI Generated Opinion Summaries

This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.

Facts

• The City of Albuquerque applied to the Office of the State Engineer (OSE) to divert approximately 45,000 acre-feet per year of native Rio Grande water, to which it had no appropriative right, to facilitate the use of its San Juan-Chama Project water. The application did not seek any appropriative rights to the native Rio Grande water, which was to be returned to the river in full measure after diversion. Various entities protested the application, leading to extensive hearings and the eventual granting of a permit by the OSE, subject to specific conditions (paras 3-4, 12).

Procedural History

• District Court of Bernalillo County: Affirmed the OSE's approval of the application and granting of the permit (para 3).
• Court of Appeals of New Mexico: Initially filed an opinion on November 28, 2011, which was withdrawn, and a new opinion was issued reversing the district court's decision and remanding to the OSE to issue a corrected permit (para 1).

Parties' Submissions

• Protestants-Appellants: Argued that the permit was unsupported by law as it was based on an application to divert water without asserting a prior appropriative right or beneficial use of the water diverted. They also raised issues regarding jurisdiction, the necessity for the State Engineer to recuse, and the adequacy of the impairment analysis (paras 5-6, 62-93).
• Applicant-Appellee: Contended that the OSE had jurisdiction to consider the application based on its broad authority and that the diversion for a "non-consumptive" and "not beneficial" use did not require an appropriation or entitlement to the native Rio Grande water (paras 18-19, 41-44).
• Respondent-Appellee (New Mexico State Engineer): Supported the Applicant-Appellee's position on the jurisdiction and authority of the OSE to approve the application without specific invocation of statutory authority (paras 18-22).

Legal Issues

• Whether the OSE had jurisdiction to consider the application for a permit to divert native Rio Grande water for a non-consumptive, beneficial use without an appropriation request (paras 17-58).
• Whether the State Engineer's participation in the agency review of the application required recusal due to bias or prejudgment (paras 62-71).
• Whether the doctrine of primary jurisdiction required the district court to remand the matter to the OSE for further consideration of compliance with the Rio Grande Compact (paras 72-79).

Disposition

• The Court of Appeals reversed the district court's approval of the permit and remanded to the OSE to reissue the permit in accordance with the opinion, affirming in all other respects (para 94).

Reasons

• The Court of Appeals held that the application involved a new beneficial use of native Rio Grande surface water that required an appropriation. It found that the OSE had jurisdiction to review the application and that the application and notice provided all information required for such an application. The court also held that the State Engineer's participation did not require recusal as there was no evidence of bias or prejudgment. Finally, the court found that the doctrine of primary jurisdiction was inapplicable, and the findings of fact by both the OSE and the district court were adequate regarding compliance with the Rio Grande Compact and impairment analysis (paras 34-58, 62-93).