Summary of Opinion
own a 40-acre ranch
Text of Opinion
We are asked to answer two questions certified to us by the United States Court of Federal Claims, pursuant to Rule 12-607 NMRA:
1. Does the law of
the State of
2. Does the law of the
We answer both questions in the negative.
The Walkers own a
forty-acre cattle ranch in southwestern
In April 1996, the Forest
Service conducted inspections of the allotments in response to
sick and dying cattle.
In October and November
1996, the Forest Service canceled both of the Walkers' grazing permits.
The Walkers subsequently
filed a complaint in the United States Court of Federal Claims (Court
Claims), arguing that the United States had violated the Just
Clause of the Fifth Amendment to the United States Constitution by
their grazing permits without compensating the Walkers for their
property interests. Walker
66 Fed. Cl. at 61;
see U.S. Const. amend. V
(“[P]rivate property [shall not] be taken
for public use, without just compensation.”).
Having failed to convince the federal district court of their
fee interest in the surface estate of the allotments under federal law,
Walkers then asserted a property right under New Mexico state law which
been taken and for which they claimed just compensation.
Specifically, the Walkers argued that the
revocation of the federal permit resulted in the loss of “water,
grazing” rights based on
In examining the Walkers'
takings claim, the Court of Claims concluded that
I. Does the Law of
the State of
a Limited Forage Right for Livestock Implicit in a
Vested Water Right Historically Used for Stock Watering?
As an initial matter, we note that we do not decide whether the Walkers actually have a valid water right, or whether they are entitled to compensation for any alleged taking of such a water right. That matter is not before us, and for the purpose of deciding the certified questions, we assume, without deciding, that the Walkers do have a valid water right as they claim.
There is a serious dispute whether the Walkers
have any valid water
rights because the water on the allotments is part of the Mimbres River
System and the Mimbres Underground Water Basin, both of which have been
and finally adjudicated by the New Mexico courts.
See Mimbres Valley Irrigation Co. v.
Salopek, D-619-CV-66006326 (6th Jud.D.Ct. Jan. 14, 1993). According to the
As stated earlier, it is also clear that the Walkers do not have any property rights under federal law to the surface estate of the allotments.
The question we must answer is whether the Walkers have a property right cognizable under state law as incident to that water right to use the surface estate of the allotments for forage. To make this claim, the Walkers trace a connection between their water right and an alleged property right in the surface estate. Specifically, the Walkers assert that their vested water right, historically used to water cattle, entitled their predecessors in interest and now entitles them, to the implicit use of the surrounding land as forage for that livestock.
The Walkers' argument is
two-fold. First, they assert that
right to forage when utilizing a water right was established under the
customary practice of
The Walkers' state law
argument can be broken down into three parts: (1)
the state law requirement that a water
right must be put to beneficial use to avoid abandonment;
(2) a specific state statute of ancient
1978, § 19-3-13 (1953); and (3) New
case law, both past and present. The
Walkers weave together these sources of
In arguing for a property right to forage, the Walkers focus on the interplay of the beneficial use requirement with Section 19-3-13, which provides as follows:
Any person, company or corporation that may appropriate and stock a range upon the public domain of the United States, or otherwise, with cattle shall be deemed to be in possession thereof: provided, that such person, company or corporation shall lawfully possess or occupy, or be the lawful owner or possessor of sufficient living, permanent water upon such range for the proper maintenance of such cattle.
The Walkers' argument can
be summarized as follows: (1) to obtain
and maintain a water right in
Focusing on this link between water and cattle, the Walkers argue that by rescinding their right to graze on the allotments, the Forest Service has deprived them of their right to make beneficial use of their water.
Stock watering is a beneficial use under
It is the purported right to graze (forage) of which the Walkers have allegedly been deprived and for which they seek compensation. After drawing this connection between water and use of the surrounding land, the Walkers draw further support for their claim from certain phrases pulled from precedent of this Court and our Court of Appeals which will be discussed in detail further in this opinion.
One court has framed the
question as follows: “whether [the]
alleged grazing interest is a stick in the bundle of rights,” under
law, that the Walkers have acquired with their water rights on the
Cattle Co., Inc. v. United States,
468 F.3d 803, 806 (Fed.Cir.2006) (Colvin
). Before turning to
A. Federal Case Law
We are not the first court to entertain a claim of a right of forage incident to an existing water right. Federal courts have rejected similar claims based on relevant federal law as well as claims arising from analogous state law. One federal case, Diamond Bar Cattle Co. v. United States, 168 F.3d 1209 (10th Cir.1999), has even construed New Mexico state law on point in rejecting a claim very similar to that put forth by the Walkers.
In Diamond Bar, the
Tenth Circuit Court of Appeals examined whether
Though the Diamond Bar plaintiffs sought a different remedy than the Walkers, namely continued possession of the range as opposed to compensation, the nature of the property interest at issue in both cases is the same. See Colvin Cattle Co. v. United States, 67 Fed. Cl. 568, 574 n.5 (2005) (Colvin I ).
To ascertain what rights,
if any, were “appropriated” by state law during the time of the open
Tenth Circuit turned to
denied Diamond Bar's claim to an implied forage right under the federal
Act of 1866, similar to a claim made by the Walkers in federal court. Diamond
Bar Cattle Co.,
168 F.3d at 1215.
The Mining Act recognizes and protects those
who have had rights to the use of water according to “local custom,
the decisions of [state] courts.”
The Walkers, and the
Certification Order from the Federal Court of Claims, also refer to
federal case, Hage v. United States, which the Walkers use to
their assertion that local law and custom define what is encompassed in
Walkers' water right. 42
Fed. Cl. 249 (1998) (Hage I ), rescinded
in part by 51
Fed. Cl. 570 (2002) (Hage II ). In Hage I, the Court of Claims
asked to assess the property rights of certain ranchers to the surface
of federal allotments based on their ownership of vested water rights
For two reasons, Hage I
does not support the Walkers' assertion that their
As previously noted, the
Walkers' state law argument is premised on three overlapping legal
areas: the beneficial use requirement, the
19-3-13 and its interplay with the
requirement, and certain language drawn from our precedent. We begin with a brief discussion of
1. Foundational Principles and Historical
The prior appropriation
doctrine governs water law in
Under the doctrine of prior appropriation, water rights are both established and exercised by beneficial use, which forms “the basis, the measure and the limit of the right to use of the water.” N.M. Const. art. XVI, § 3. A water right is separate and distinct from a right to adjacent land because it is derived not from the rights in the land, but “from appropriation for beneficial use.” Olson v. H & B Props., Inc., 118 N.M. 495, 498, 882 P.2d 536, 539 (1994). As a result of the separate and distinct nature of a water right, that right must be exercised or lost; one cannot sit on water rights to the exclusion of any other claimant without putting them to beneficial use. See Ira G. Clark, Water in New Mexico: A History of Its Management and Use 39 (1987) (“Since the criterion was application of water to beneficial use, this was not a property right which could be acquired in perpetuity; it had to be exercised to be kept alive.”).
The sole exception to the general rule that water rights are separate and distinct from the land is water used for irrigation. See KRM, 1996-NMCA-103, ¶ 8 (holding that Section 72-1-2 and NMSA 1978, § 72-5-22 (1953) “evince an intent to create a limited statutory exception to the general rule that water rights and land ownership are distinct property rights”). Irrigation water rights are appurtenant to the land, meaning that any conveyance of the land will carry the water right with it unless the water right is expressly reserved by the grantor. See NMSA 1978, § 72-1-2 (1953) (providing that “all waters appropriated for irrigation purposes ... shall be appurtenant to specified lands owned by the person, firm or corporation having the right to use the water”); § 72-5-22 (providing that “the transfer of title of land in any manner whatsoever shall carry with it all rights to the use of water appurtenant thereto for irrigation purposes, unless previously alienated in the manner provided by law” (emphasis added)); Turner v. Bassett, 2005-NMSC-009, ¶ 10, 137 N.M. 381, 111 P.3d 701 (noting that under Sections 72-1-2 and 72-5-22, “water that is applied to irrigation becomes appurtenant to the land on which it is used”).
The prior appropriation
tradition, as it exists in
Early Western settlers,
such as those in the gold mining camps of California and the early
settlements in Colorado, found the riparian doctrine unworkable in the
West because they often had to divert water from its source in order to
beneficially because the land associated with the use of the water did
itself contain a water source. See
A. Dan Tarlock, The Future
of Prior Appropriation in the New West,
41 Nat. Resources J. 769, 770 (2001);
As indicated by its historical evolution in the West, a primary feature of the prior appropriation doctrine and its concomitant beneficial use requirement was the need for water to be mobile or divertible to other areas of use and not tied to the surrounding land. See 2 Joseph W. Dellapenna, Waters and Water Rights 11.02(a), (d) (Robert E. Beck, ed., 1991 ed., 2001 Repl.Vol.) (noting the key attributes of prior appropriation address the need in arid regions to divert and transport water in order to place it to beneficial use). Because water is a scarce commodity in the West, mobility and transferability are necessary to meet changing social goals. This often means moving water from one location to another and also from one use to another. See Kaiser Steel Corp. v. W.S. Ranch Co., 81 N.M. 414, 419, 467 P.2d 986, 991 (1970) (discussing how even private parties may exercise powers of condemnation to construct facilities to transport water and put it to beneficial use such as mining); Clark, supra, at 39 (stating that prior appropriation “had released the arid western region from restricting its scant water resources to the limits of riparian lands, making possible the diversion of those waters to areas where they could be applied more effectively”).
Water rights are therefore not tied to a particular location or even a particular source. See NMSA 1978 § 72-5-23 (1985) (change of place of use); NMSA 1978 § 72-5-24 (1985) (change of purpose); NMSA 1978 § 72-12-7 (1985) (change of location of well for groundwater). As such, water rights are not considered ownership in any particular water source, but rather a right to use a certain amount of water to which one has a claim via beneficial use. See Joseph L. Sax, Rights that “Inhere in the Title Itself”: The Impact of the Lucas Case on Western Water Law, 26 Loy. L.A. L.Rev. 943, 944 (“Water has been described as merely usufructuary; as belonging to the public; as subject to public servitudes; as incapable of full ownership; as subject to constraints that it be used nonwastefully, reasonably, beneficially, etc.” (citation omitted)). Thus, under prior appropriation, as a separate protected property right, a vested water right can be “sold, leased, or transferred.” KRM, 1996-NMCA-103, ¶ 5.
This mobility of water rights, generally not appurtenant to any specific land, informs our analysis of the Walkers' argument in this case. As we shall see, the Walkers would have this Court undermine years of established law by declaring such a link, or an appurtenance, between land and water in the non-irrigation context.
2. Section 19-3-13 and Its Interplay
with the Beneficial Use Requirement
The Walkers draw on
(Emphasis added.) The Walkers further argue that Section 19-3-13 conferred a “possessory interest in an easement to stock the public range in conjunction with water ownership.” In other words, the statutory use of the word “possession” in connection with discussion of a valid water right to support cattle demonstrates a legislative intent to give those with a water right for stock watering on the public domain a possessory interest in that range attendant to the water right.
As correctly observed by
the Tenth Circuit in Diamond Bar, this Court has already
nature of the possessory interest discussed in Section
19-3-13 and held that it is not as
broad as the
Walkers interpret it to be. As early
1915, this Court stated that the precursor to Section
19-3-13 did not “grant any exclusive
right in the
use of the public domain.” Hill,
21 N.M. at 11, 151 P. at 1015. Hill addressed whether the predecessor
19-3-13 conflicted with federal laws
that public lands should be left open for all to enjoy.
at 10-12, 151 P. at 1015-16. In holding that Section
19-3-13's predecessor was a proper use
police power, and not in conflict with federal law, this Court noted
granting any party an exclusive right to the public domain would
federal law, “and must therefore be held invalid.”
at 11, 151 P. at 1015.
Construing the predecessor to Section
19-3-13 narrowly, this Court observed
In Yates, this Court
expanded on Hill, holding that under the predecessor to Section
19-3-13, when a person has obtained
water on the public range to raise cattle, that person has the right to
exclusive enjoyment of that range, but only as “against others who did
develop other waters upon the same [lands].”
30 N.M. at 422, 235 P. at 437. While noting that the predecessor to Section
19-3-13 provides access to those with
rights, in Yates we emphasized that such access to the public
not a right but a privilege, governed by license from the federal
N.M. at 422, 235 P. at 437; see also William D. Rowley, U.S.
Forest Service Grazing and Rangelands: A
History 54 (1985) (noting that since the formation of the forest
the use of terms such as “privilege” and “allotment” indicate “the
contention that stockmen did not possess unlimited rights to graze on
reserves”). Accordingly, and
to the Walkers' assertion that they have a possessory interest to
public domain independent of their grazing permit, this Court has
held that Section
19-3-13 and its predecessor recognize
right in the use of the license to graze on public lands,
with sufficient water rights to support cattle on such lands to exclude
without a water right. Yates,
30 N.M. at 422, 235 P. at 437; Hill,
21 N.M. at 11, 151 P. at 1015-16. This Court has never indicated that a
raising cattle pursuant to a license has any separate interest in the
domain, aside from water rights protected by the Mining Act, that can
asserted against the
In connection with Section
19-3-13, the Walkers also argue that the beneficial use
gives rise to a right to continue a particular beneficial use on the
land upon which a water right is initially established.
Thus, by limiting their ability to graze
cattle on the allotment, the
First, the Walkers have not been forced into non-use, because as discussed previously, all water rights, even if appurtenant to a certain piece of land, can be severed from that land and applied to another use at a different location. See § 72-5-23 (laying out the process for changing place of use of an appurtenant water right); § 72-5-24 (laying out the process for changing the purpose of use and place of diversion for a vested water right); § 72-12-7 (laying out the process for changing well location and use); see also Mathers v. Texaco, Inc., 77 N.M. 239, 248, 421 P.2d 771, 778 (1966) (noting that New Mexico statutes “expressly recognize that the right to use water upon certain lands may be severed from such lands and become appurtenant to other lands, or may be transferred for other purposes and other uses”); Tarlock, supra, at 777 (“Water rights, despite their usufructuary character, have always been treated as transferable property rights.”). Thus, the value of the Walkers' water right does not depend entirely on stock watering at the same location; the right can be severed from the allotments, moved to other lands, used for other purposes, or even sold. See, e.g., Colvin I, 67 Fed. Cl. at 570 (noting that although a rancher was no longer permitted to graze cattle on certain Bureau of Land Management (BLM) lands, he continued to have a vested water right appurtenant to said lands, and thus the newly authorized rancher on the BLM lands had to haul in his own water).
Second, the requirement that water must be put to beneficial use does not give rise to an interminable right to continue that same beneficial use. See McNew, 33 N.M. at 436, 269 P. at 65 (“It ... does not follow that, because water has been appropriated for a particular use, it forever thereafter must be applied to that use.” (quoted authority omitted)). For example, if one acquires a water right by beneficially using water in a milling operation, which operation is subsequently shut down due to environmental violations, the mill operator cannot claim a right to continue milling just to protect the water rights. In this case, the Walkers' ability to acquire and use their water right on the allotments was conditioned on the permission of the federal government to go on the land. The Walkers were thus responsible for maintaining their license to graze on the public land, and since they lost that license, they cannot now rely on a right to continue a particular beneficial use to maintain the water right that they were able to acquire by way of government permission in the first place. Because the Walkers chose not to comply with the government's permitting process, they took the risk of either forfeiting their water right through non-use or being forced to transfer, lease, or sell that right.
Case and Subsequent Developments
Along with Section
19-3-13, the Walkers rely on this
opinion in First
State Bank of Alamogordo v. McNew,
33 N.M. 414, 269 P. 56 (1928), to
argument that they have an implicit right to land incident to their
right. Quoting selectively from
particular passages in McNew, the Walkers and their Amici
assert that a
possessory right to forage on public lands is implicit within a
The Walkers also claim that McNew “analogizes a stockwater [sic] right to an irrigation right,” and thus supports a finding that an interest in land is incident to a water right. In other words, since irrigation water rights become appurtenant to the land on which they are used, stock watering rights, which are also tied to the land through grazing, imply a grazing right on the land surrounding the source of that water. The Walkers point to the following statement from McNew:
Since water for stock-raising, as well as for irrigation, may become incident to the beneficial use of land, the cases cited are not distinguishable in that respect. The water right is considered incident or appurtenant to the land irrigated, because that is the use which it is applied and for which appropriated. For the same reason, it should be deemed incident to the land on which W.H. McNew's cattle grazed.
33 N.M. at 423, 269 P. at 60 (citation omitted). The Walkers assert that if stock watering rights can be incident to land, then conversely, a land right utilized to gain that water right, such as forage, can be incident to a water right.
Upon careful analysis of
the McNew opinion, we conclude that the Walkers have misread
as well as its place in
While our discussion of McNew
could end here, we think this distant opinion deserves further
especially in light of the specific passages the Walkers selectively
to support their argument. The facts
McNew provide important context and are historically
specific to the time of the “open range” when the public domain was
settlers seeking to make a living in the arid conditions of the West.
McNews raised cattle on the public range, but held no title to the land. McNew,
33 N.M. at 422, 269 P. at 59. As part of their stock raising
the McNews purchased rights to a large amount of water and built the
instrumentalities necessary to pipe that water to the range to water
Whatever the merits of an
oral conveyance may have been in 1928, however,
Therefore, all of McNew
's language about water being “appurtenant” to possessory estates in
utilized to avoid the statute of frauds, seems out of time, would not
the same today, and serves no continuing purpose for the law. As previously discussed, the law of
Drawing on this same language from McNew, a later Court of Appeals opinion cited McNew, indicating in dicta that water used for certain domestic purposes, “including watering livestock,” can be incident to land “where the right to continue to use the water on the land is indispensable to the enjoyment of the land.” KRM, 1996-NMCA-103, ¶ 7 (citing McNew, 33 N.M. at 430, 269 P. at 62-63) (emphasis added). The Walkers seize upon this language in KRM to support their argument that forage rights are implicit in a water right because without the right to forage their water right is valueless.
To the extent that KRM, and specifically the final sentence in paragraph seven of that opinion, suggests that uses of water other than for irrigation purposes are appurtenant to land, we hereby correct that language. It relies on the very language in McNew that we have just held to be of no further legal effect. Though only dicta in KRM, that language is potentially confusing to the law; and therefore, in the interests of clarity, that discussion in paragraph seven should no longer be cited for the proposition that water can be incident or appurtenant to land, except in the case of irrigation.
C. Customary Practice
Finally, the Walkers and
Amici argue that
While “control of the
range” may have been the practical result of securing the resources
to maintain livestock over a particular area, that control does not
lead to the
conclusion that a stock watering right includes the right to other
associated with stock watering. It
true that in order to be preserved by the Mining Act of 1866, an
forage right must have been identified and established by settlers. However, the
The Walkers seek to establish a possessory interest that those utilizing the public domain for grazing have always sought-a surface interest in government land. See Debra L. Donahue, Western Grazing: The Capture of Grass, Ground, and Government, 35 Envtl. L. 721, 738 (2005) (“Before long, however, [grazing] operators sought land of their own and/or secure rights to government lands on which they could produce livestock”); id. at 740 (noting that all stock owners sought to “establish ‘range rights' to lands they did not own” (quoted authority omitted)). However, the law regarding the public domain has always been clear that while Western ranchers can lawfully gain access to and make use of public lands, such lands are not theirs for the taking. It was only through legislative action that, first, homesteaders using the land for irrigation, then ranchers under certain limited conditions, could legally take some of the public domain for private ownership. See Homestead Act of 1862, ch. 561, 26 Stat. 1097 (previously codified at 43 U.S.C. § § 161-284 (1970) (repealed 1976)) (allowing a homesteader to purchase up to 160 acres of cultivated public lands for a minimal price); Kincaid Act, ch. 1801, 33 Stat. 547 (previously codified at 43 U.S.C. § § 222-24 (1970) (repealed 1976)) (expanding the size of homesteads to 640 acres in Nebraska); Stockraising Homestead Act, ch. 9, 39 Stat. 862, 862-65 (1916) (previously codified at 43 U.S.C. § § 291-98 (1970) (repealed 1976)) (limiting homesteads for ranching purposes to 640 acres, much less than often required for successful ranching). And, as noted above, the right to use the public domain for ranching has always been characterized as a license, not a real property interest, with regard to the interest of the federal government. Buford v. Houtz, 133 U.S. 320, 326 (1890). Thus, the Walkers seem to be attempting to wage a battle lost at the turn of the last century, even prior to the federal permit system which made it clear that the right was a license, not a real property interest.
In addition to the fact
that custom does not support the Walkers' claim, we recently held that
customary practice is irrelevant when inconsistent with
We, therefore, hold that
neither the laws of
II. Does the Law of the
Recognize a Limited Forage Right Implicit
in a Right-Of-Way for the Maintenance and
Enjoyment of a Vested Water Right?
Similar to the argument
that a forage right is implicit in a water right under
In other words, the
Walkers claim that a
right to forage is within the scope of a right-of-way consistent with
Mining Act and state law. The Mining
Act recognizes a property right in public lands for “the right of way
construction of ditches and canals” to carry water.
U.S.C. § 661 (2000). We must
if the scope of such a right-of-way includes a forage right under
The language in Section 19-3-13 the Walkers rely on is vague and does not directly implicate any form of right-of-way or easement. The text of the statute does not use either of these terms. Moreover, as discussed in depth in our answer to the first certified question, Section 19-3-13 deals solely with priority of possession among users of the range, and does not convey any possessory rights or surface rights of any kind in federal lands. And certainly no such rights are statutorily implied from one's status as a holder of water rights.
There are, however, two
NMSA 1978, § 73-2-10
(1953) is also directly contrary to
the Walkers' claim. Section 73-2-10
states that “[a]ll plants of any description growing on the banks of
ditches, or acequias, shall belong to the owners of the land through
ditches or acequias run.” Thus, the
grass growing on ditch banks is subject to grazing by the landowner,
holders of any destination water rights.
This statutory provision has historical roots.
Moreover, the cases cited by the Walkers and their Amici do not lend support to their argument. In Jastro v. Francis, this Court held that a private landowner could not keep another from driving his stock across the privately held land to public domain through use of a right-of-way, and that along the way the stock would necessarily pass over and consume “grass from some of the land of the private owner.” 24 N.M. 127, 136, 172 P. 1139, 1142 (1918). The right-of-way in Jastro was specifically for the purpose of driving stock to the public range over private land, implicit in which is a right to forage. Jastro did not address any interruption to a vested water right. In the instant case, we are asked to determine what is implicit in a right-of-way for enjoyment of a water right. Thus, Jastro is not applicable.
We, therefore, hold that
the laws of
Having determined that the case law and statutes of this State, as well as customary practice, do not support holding that a right to forage is within the scope of a water right or right-of-way for enjoyment of a water right, we answer both questions certified to us in the negative.
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