Wednesday, July 31, 2013

Bounds Vs. New Mexico and Kansas LEMAs

The New Mexico Supreme Court just rendered an interesting decision in the Bounds Vs. New Mexico court case relating to exempt wells.  By way of [brief...very brief] background, Horace Bounds back in 2006 challenged the constitutionality of the New Mexico Domestic Well Statute (DWS), which requires the state engineer to approve domestic water right applications - regardless of whether new water is available for appropriation.  Mr. Bounds has a very senior surface water right on the local river for irrigation, and argued that new appropriations - of any kind - were going to impair his senior water right. Therefore all water uses must be handled under the prior appropriation system.

The State Engineer argued that the DWS was a clear expression of legislative intent to treat certain necessary water uses differently, and in creating that distinction, they articulated a class of uses of public water that was to be exempt from (or outside) the scope of the general scheme of appropriations.

Long story short, the original court found for Bounds, the Appellate Court overturned the original finding and ruled for the State, and finally the State Supreme Court upheld the Appellate Court's decision.  As it stands now, the state engineer's argument is the correct one. 

The Court of Appeals concluded that the New Mexico priority doctrine is not a system of administration that dictates any particular manner of administration of appropriations and/or the use of water, or, how senior water rights are to be protected from junior users in time of shortages.  Also, because the Legislature determined that domestic well permits are to be issued upon application without prior evaluation of water availability or impairment, is not a violation of the priority doctrine or of the Legislature’s constitutional duty to assure that senior water rights are protected under that priority doctrine.  There is actually much more to the Bounds ruling, but this one point is the one I'm most interested in.

I find the main issue of this case interesting because our new LEMA legislation provided for a whole host of local groundwater supply shortage remedies, including some that do not use the prior appropriation system that is also so fundamental to Kansas water law.  In public discussions this issue comes up just about every time, so it's clear that a number of Kansas folks are thinking along the lines of Mr. Bounds.  We have always responded that the Legislature has decided it best to provide other solutions to supply shortages (other than administration by prior appropriation) so we are on solid legal ground. 

Of course, there are many differences between New Mexico water law and Kansas water law, and our State Supreme Courts are different, so there is no way to know if the same ruling would be rendered if our LEMA approach would be challenged.  But, I think we'd be making many of the same arguments, and, referencing the New Mexico Bound's case.   

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