Water & Environmental Law

LRPA has been, and continues to be, involved in precedent-setting cases involving a broad range of federal environmental laws including the Endangered Species Act, the National Environmental Policy Act, the Clean Water Act, the Federal Power Act, Administrative Procedure Act, the Federal Power Act, and the Clean Air Act.

LRPA’s attorneys successfully challenged the United States Fish and Wildlife Service’s overly broad critical habitat designation for the Rio Grande silvery minnow, a decision that was affirmed by the Tenth Circuit Court of Appeals. Middle Rio Grande Conservancy Dist. v. Norton, 294 F.3d 1220, 32 Envtl. L. Rep. 20,734 (10th Cir. 2002). LRPA’s attorneys were also successful in obtaining attorney fee and cost awards on behalf of the MRGCD in these matters from the federal government.

The late Senior Judge Mechem recognized the special litigation expertise of LRPA’s attorneys in making the highest ESA / NEPA fee and cost award we are aware of anywhere in the country. In his Order Awarding Attorney Fees Senior Judge Mechem wrote:

“counsel for the MRGCD [LRPA] needed an understanding beyond environmental law and water law. Counsel needed, in addition to several areas of the law, to be conversant in, if not hold a thorough understanding of stream morphology, river management, biology, history, other endangered species in the area, Indian water rights and interstate compacts committing the distribution of Rio Grande water. Thus, in order to direct this case toward a successful end, more than one well-experienced counsel of considerable skill was required . . . . The law involved in the case included developing aspects of environmental, endangered species and water law, as well as administrative and constitutional law; and it was critical at all stages of the case to be well-versed in the most recent cases in the field. Plaintiff’s [MRGCD] briefs and letters indicated an impressive professionalism and competence in each of the fields of law required to pursue their interests, and the briefs from a legal, as well as scientific perspective, were well-done in all regards.”

. . .

“Without question, Plaintiff MRGCD has prevailed on the merits. I consider MRGCD as a prevailing party not only on ESA claims, but also on causes of action grounded in NEPA and the APA. Additionally, MRGCD has contributed substantially to judicial review and to the implementation of the Endangered Species Act in accordance with its goals, and MRGCD is clearly entitled to attorneys’ fees and costs pursuant both to the ESA and the EAJA. With regard to the latter [EAJA], MRGCD has succeeded on the merits (a) against the government, (b) when the government’s position was neither reasonable nor justified. The Memorandum Opinion and Order which terminated this litigation expressly concludes that Defendants’ actions were arbitrary and capricious and that the position taken by Defendants which precipitated the case was not substantially justified.”

Mem. Op and Order Awarding Attorneys’ Fees, 6-7, Middle Rio Grande Conservancy District v. Norton, No. CIV 99-870, 99-872, and 99-1445 M/RLP (Cons.) (D.N.M. June 18, 2001).

In recent years, LRPA was successful in two significant New Mexico Supreme Court cases that clarified the nature of ownership in water rights as well as the nature of the hydrologic connection between ground and surface water.

Hydro Resources Corp. v. Gray

The New Mexico Supreme Court’s November 9, 2007 decision in Hydro Resources Corporation v. Harris Gray and William J. Frost, 2007-NMSC-061, 143 N.M. 142, 173 P.3d 749 settled the law of leases and agency in water rights in New Mexico. The Court of Appeals’ earlier decision had affirmed the district court’s judgment quieting title in water rights developed by Harris Gray and William Frost’s predecessor–in–interest (a mineral lessee) for use on an unpatented mining claim in favor of Hydro Resources Corporation (“Hydro”), the subsequent owner of the property on which the unpatented mining claims were located. Hydro Resources Corp. v. Gray, 2006-NMCA-108, 140 N.M. 363, 142 P.3d 951. The Court of Appeals had based its decision on its conclusions that the default position in the face of a silent mineral lease is that the lessee acts as the lessor’s agent in developing water rights and, the Supreme Court inferred, on an implicit understanding that water rights are appurtenant to mining claims.

At the time, these earlier court rulings called into question thousands of mining leases, grazing leases and subdivision contracts in which the beneficial user is not the landowner, and thus, raised significant concerns for New Mexico water users and developers. The Supreme Court’s decision allayed these concerns and placed the question of water rights in mineral leases back within the mainstream of New Mexico’s Prior Appropriation Doctrine.

Herrington v. State of New Mexico ex rel. Office of the State Engineer

In 2006, LRPA successfully argued and prevailed in Herrington v. State of New Mexico ex rel. Office of the State Engineer, 2006-NMSC-014, 139 N.M. 368, 133 P.3d 258. This landmark New Mexico Supreme Court decision clarified the law of supplemental wells in New Mexico, reversing both the State Engineer and the New Mexico Court of Appeals, which had denied a supplemental well to the applicant.

In a unanimous opinion filed March 9, 2006, the New Mexico Supreme Court clarified the confusion in application of what is known in New Mexico as the Templeton Doctrine as well as important distinctions in New Mexico water law between the Templeton Doctrine and statutory transfers of water rights in general. Herrington v. State of New Mexico, ex rel. Office of the State Engineer, Supreme Court No. 28,628 (NM 2006); see also Templeton v. Pecos Valley Artesian Conservancy Dist., 65 N.M. 59, 332 P.2d 465 (1958).

The New Mexico Supreme Court addressed three important issues. First, the Court clarified the factual application of the Templeton Doctrine; second, it clarified whether application of the Templeton Doctrine includes downstream points of diversion; and third, it clarified those factual circumstances under which the Templeton Doctrine is applicable to statutory transfers of points of diversion.

The Court’s opinion clarified important legal issues in New Mexico water policy under the Templeton Doctrine. In a surface to groundwater transfer, a supplemental well point of diversion is permissible as a matter of right if a senior surface water appropriator diverts water that consists in part of baseflow, which is depleted by junior wells in the area and where such wells have depleted senior surface flows. The senior appropriator may install a supplemental well that follows the source of the baseflow to the aquifer that feeds the surface waters. The Court further clarified that a supplemental well may be located downstream of the surface point of diversion, provided that it still meets the Templeton same source requirement, and finally, that statutory transfers of surface to groundwater are administrative decisions made by the OSE, independent of a Templeton analysis, and may be sought as a matter of right if statutory criteria are met.