                                                 I attest to the accuracy and
                                                  integrity of this document
                                                    New Mexico Compilation
                                                  Commission, Santa Fe, NM
                                                 '00'04- 16:39:23 2012.09.19
Certiorari Denied, August 6, 2012, No. 33,646

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2012-NMCA-090

Filing Date: April 26, 2012

Docket No. 30,584

STATE OF NEW MEXICO ex rel.
OFFICE OF THE STATE ENGINEER,

       Plaintiff-Appellee,

v.

ELEPHANT BUTTE IRRIGATION DISTRICT,

       Defendant,

and

TOMAS J. GONZALEZ, MARIANA A.
GONZALEZ, DON P. GONZALEZ,
SANTIAGO GONZALEZ, and RAMONA
GONZALEZ-JIMENEZ,

       Defendants-Appellants,

and

BONNIE MAYORGA, DONACIANO E.
GONZALEZ, ADRIAN R. GONZALEZ,
BERTHA D. TORAZAS, and ANDREA
GONZALEZ OGAZ,

       Sub-File Defendants/Appellants.

APPEAL FROM THE DISTRICT COURT OF DOÑA ANA COUNTY
Jerald A. Valentine, District Judge

Gary K. King, Attorney General
DL Sanders, Special Assistant Attorney General

                                          1
Richard A. Allen, Special Assistant Attorney General
Martha C. Franks, Special Assistant Attorney General
Santa Fe, NM

for Appellee

Deschamps & Kortemeier Law Offices, P.C.
Stephen Karl Kortemeier
Socorro, NM

for Appellants

                                         OPINION

SUTIN, Judge.

{1}     The bifurcated part of this case involving solely the issues of abandonment and
forfeiture of water rights was tried by a special master. A special master determined that
Defendants’ irrigation rights were abandoned and forfeited, and recommended “that the
[c]ourt enter judgment determining that [D]efendants . . . have no surface or [groundwater]
rights appurtenant to the Property for the purpose of irrigation[.]” The district court adopted
the special master’s report in its entirety. Defendants raise several points of error on appeal
of the court’s order adopting the special master’s report and denying their objections. We
affirm.

BACKGROUND

{2}    Defendants are co-owners of land acquired in 1881 by ancestors by way of United
States patents and also acquired from a transferor who also received a patent in 1881,
bringing the total of the patented land to 253.5 acres. Due to a flood in 1884 that changed
the course of the Rio Grande, the patented land became isolated on one side of the river. In
about 1940, the International Boundary and Water Commission (IBWC) acquired a small
portion of the land that at the time constituted a portion of the bed of the Rio Grande.

{3}     Evidence relating to irrigated acreage showed that portions of the property had been
farmed and irrigated before 1956. Defendants did not farm after 1956, and water has not
otherwise been put to beneficial use on any of the property. Defendants contended that this
non-use was justified because lack of physical access to the property made it impractical and
too difficult for them to farm.

{4}     More particularly, Defendants claimed that the IBWC acquisition eliminated access
to and across the river to their land and that other contiguous lands were held by the Bureau
of Land Management (BLM). They claimed that, as a consequence, they were left with


                                              2
“surreptitious crossings of the river when the flow was slight.” The special master found1
that, although Defendants claimed that changed conditions after 1956 made farming even
more difficult than it was before 1956, “the record contain[ed] no credible evidence to
support this assertion.”

{5}     Defendants claim ownership of water rights sufficient in amount to irrigate the entire
property they presently own. The district court determined that Defendants both forfeited
and abandoned their water rights. In addition, the court determined that the forfeiture was
neither excused under the forfeiture statute, nor did Defendants establish an intent not to
abandon their water rights.

{6}      In claiming error in the court’s abandonment and forfeiture rulings, Defendants argue
(1) the statutory forfeiture violated Article XVI, Sections 1 and 2 of the New Mexico
Constitution; (2) the State Engineer lacked statutory authority to pursue forfeiture for events
occurring prior to 1981; (3) the court erred in finding that the land in question consisted of
less than fifty acres; (4) the court’s findings failed to recite that they were based on clear and
convincing evidence; (5) certain of the court’s findings in regard to access to the land were
not supported by substantial evidence; (6) the court erred in concluding that the presumption
of intent to abandon met the clear and convincing standard of proof; and (7) the court
erroneously entered judgment without determining the issue of Defendants’ demand for a
jury trial. For the reasons that follow, we reject each of Defendants’ arguments.

DISCUSSION

1.      The Constitution and Statutory Authority Issues

{7}     Defendants assert that the “court erred, as a matter of law, in concluding that
Defendants’ water rights were subject to statutory forfeiture.” They break the point down
into two subpoints: (1) “[s]tatutory forfeiture, as found in this case, violates the provisions
of [Article] XVI, [S]ections 1 and 2 of the New Mexico Constitution”; and (2) “[t]he State
Engineer lacks statutory authority to pursue forfeiture in the Lower Rio Grande for events
occurring prior to 1981.”

a.      The Constitutional Issue

{8}    We review interpretation and application of constitutional and statutory provisions
de novo. See City of Santa Fe v. Travelers Cas. & Sur. Co., 2010-NMSC-010, ¶ 5, 147 N.M.
699, 228 P.3d 483.



 1
   Throughout this Opinion, because the district court adopted the special master’s findings
of fact and conclusions of law in their entirety, the special master’s findings and conclusions
are also findings and conclusions of the district court, and vice-versa.

                                                3
{9}     Defendants’ constitutional point is that, under Article XVI, Sections 1 and 2, pre-
Constitution appropriation of water for beneficial use by ancestors gave rise to vested water
rights that cannot be affected by the forfeiture legislation. Defendants argue that “the crux
of this appeal is whether the expressions in [Article] XVI, [S]ections 1 and 2 continue to
have any meaning in light of the enormous pressure to ‘find’ forfeited water rights in order
to fuel expansion and growth dependent upon an increasingly scarce resource.” In that the
issues decided in this bifurcated proceeding are a part of a sub-file and part of the larger
Lower Rio Grande adjudication that was filed in 1996, Defendants assert that “[t]his is not
the time, or the case, to rewrite established New Mexico water law simply because of
economic pressure in light of the need to adjudicate the Lower Rio Grande stream system.”

{10} Article XVI, Section 1 provides that “[a]ll existing rights to the use of any waters in
this state for any useful or beneficial purpose are hereby recognized and confirmed.”
Defendants assert that this constitutional provision protects water rights existing before the
adoption of the Constitution, “as it must.” Defendants also rely on State ex rel. State Game
Comm’n v. Red River Valley Co., 51 N.M. 207, 217, 182 P.2d 421, 427 (1945), which states,
“the New Mexico [C]onstitution[] . . . could not . . . operate to deprive [any person] of any
right which may have vested prior to 1911, the date of the adoption and approval of the
[C]onstitution.”

{11} Article XVI, Section 2 provides that “[t]he unappropriated water of every natural
stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong
to the public and to be subject to appropriation for beneficial use, in accordance with the
laws of the state. Priority of appropriation shall give the better right.” Defendants assert that
the import of “unappropriated” is that “previously appropriated water is excluded.” Along
this line, Defendants argue “that after the water code was adopted, it became the exclusive
means for acquiring water rights[,]” implying“that it was not the exclusive means for
acquiring water rights prior to adoption” of the Constitution.

{12} Carrying these positions further, Defendants argue that because the right to use water
is determined by the date of appropriation, Yeo v. Tweedy, 34 N.M. 611, 617, 286 P. 970,
973 (1929), the water right becomes “vested” when the water is placed to beneficial use,
Eldorado Util., Inc. v. State ex rel. D’Antonio, 2005-NMCA-041, ¶ 10, 137 N.M. 268, 110
P.3d 76. Defendants further point out that, under the Desert Land Act of 1877, 43 U.S.C.A.
§§ 321 to 339, entry upon public lands “required the filing of a declaration of intent to
reclaim desert land by conducting water upon it and, within [three] years after filing the
declaration, ‘making satisfactory proof’ of the reclamation of said tract of land ‘in the
manner aforesaid’”; upon which the entrant “shall receive a patent.”

{13} Thus, according to Defendants, the 1881 patents for 253.5 acres then and now
constitute “prima facie evidence of having made ‘satisfactory proof’” that the land in
question covered by the 1881 patents “had been reclaimed by conveying water upon it.” In
Defendants’ view, “the fact of the patents” established that the owners “had, in fact, irrigated
the acreage prior to 1881” and that “the date of appropriation [was] at least 1881[.]”

                                               4
Therefore, Defendants claim the date of appropriation to be 1881 and argue that the
forfeiture statute cannot be applied retroactively to affect those 1881 vested rights. See
Nelson v. Homier Distrib. Co., 2009-NMCA-125, ¶ 22, 147 N.M. 318, 222 P.3d 690 (stating
that “[a] statute . . . is considered retroactive if it impairs vested rights acquired under prior
law or requires new obligations, imposes new duties, or affixes new disabilities to past
transactions” (alteration and omission in original) (internal quotation marks and citation
omitted)).

{14} Defendants’ arguments are not persuasive. “Beneficial use shall be the basis, the
measure[,] and the limit of the right to the use of water.” N.M. Const. art. XVI, § 3; NMSA
1978, § 72-1-2 (1907). “[T]he continuance of the title to a water right is based upon
continuing beneficial use[.]” State ex rel. Reynolds v. South Springs Co., 80 N.M. 144, 147,
452 P.2d 478, 481 (1969). The 1907 territorial water code that was in force when the
Constitution was adopted recognized the validity of water rights existing upon the adoption
of the water code and provided that “the [water] rights of the owners thereof shall be subject
to regulation, adjudication[,] and forfeiture for abandonment, as provided in this act.” 1907
N.M. Laws, ch. 49, § 59. The Constitution confirmed that all territorial laws in force at the
time of its adoption (to the extent that they were not inconsistent with the Constitution)
remained in force. N.M. Const. art. XXII, § 4. In 1911, our Supreme Court indicated that
it was provided by statute that “the failure to beneficially use all or any part of the water for
which a right of use has vested, for the purpose for which it was appropriated or adjudicated,
for a period of four years, shall cause the reversion of such unused water to the public[.]”
Hagerman Irrigation Co. v. McMurry, 16 N.M. 172, 179-80, 113 P. 823, 824 (1911).

{15} NMSA 1978, Section 72-5-28(A) (1997) (amended 1998 and 2002), the surface
water forfeiture statute, reads:

                 When the party entitled to the use of water fails to beneficially use all
        or any part of the water claimed by him, for which a right of use has vested
        for the purpose for which it was appropriated or adjudicated, except the
        waters for storage reservoirs, for a period of four years, such unused water
        shall, if the failure to beneficially use the water persists one year after notice
        and declaration of nonuser given by the state engineer, revert to the public
        and shall be regarded as unappropriated public water; provided, however,
        that forfeiture shall not necessarily occur if circumstances beyond the control
        of the owner have caused nonuse, such that the water could not be placed to
        beneficial use by diligent efforts of the owner; and provided that periods of
        nonuse when irrigated farm lands are placed under the acreage reserve
        program or conservation reserve program provided by the federal Food
        Security Act of 1985, P.L. 99-198, shall not be computed as part of the
        four-year forfeiture period; and provided, further, that the condition of notice
        and declaration of nonuser shall not apply to water that has reverted to the
        public by operation of law prior to June 1, 1965.


                                                5
NMSA 1978, Section 72-12-8(A) (1997) (amended 1998 and 2002), the groundwater
forfeiture statute, reads:

                When for a period of four years the owner of a water right in any of
        the waters described in Sections 72-12-1 through 72-12-28 NMSA 1978 or
        the holder of a permit from the state engineer to appropriate any such waters
        has failed to apply them to the use for which the permit was granted or the
        right has vested, was appropriated or has been adjudicated, the water rights
        shall be, if the failure to beneficially use the water persists one year after
        notice and declaration of nonuser given by the state engineer, forfeited and
        the water so unused shall revert to the public and be subject to further
        appropriation; provided that the condition of notice and declaration of
        nonuser shall not apply to water that has reverted to the public by operation
        of law prior to June 1, 1965.

{16} No beneficial use of water occurred under Defendants’ claimed water rights since
1956, including nine consecutive years of nonuse of water prior to June 1, 1965. We reject
Defendants’ argument that the vesting of those water rights before the Constitution was
adopted protected their water rights from forfeiture under the statute or from abandonment.

{17} Defendants provided no authority or argument in the district court to support their
vesting theory, and the court determined that Defendants waived the argument. Defendants
have argued the theory on appeal, but have provided no persuasive authority. Forfeiture
existed before the Constitution was adopted, and it continued afterwards. Hagerman
Irrigation Co., 16 N.M. at 179-80, 113 P. at 824 (explaining that the statutory provision that
“the failure to beneficially use all or any part of the water for which a right of use has vested,
. . . for a period of four years, shall cause the reversion of such unused water” was “merely
declaratory of the law as it had already been established”). Thus, statutory forfeiture follows
from and is not inconsistent with prior appropriation doctrine. The forfeiture statutes were
not applied retroactively in regard to Defendants’ early acquired water rights. Rather,
Defendants’ nonuse that triggered forfeiture occurred after the forfeiture statutes were
enacted. We see no basis on which to hold Defendants’ early, pre-Constitution water rights
immune from statutory forfeiture.

b.      The Statutory Authority Issue

{18} Defendants argue that the State Engineer lacked statutory authority to pursue
forfeiture in the Lower Rio Grande for events occurring before 1981, when the Lower Rio
Grande Basin was declared. They assert pursuant to NMSA 1978, Section 72-12-1 (1959)
(amended 1998, 2001, and 2003), that the State Engineer had no authority to apply statutory
forfeiture relating to events in years prior to 1981 because the State Engineer does not gain
jurisdiction over groundwater until it declares an underground water basin. We reject this
argument.


                                                6
{19} The State Engineer argues that “[w]hether a basin has been declared is irrelevant to
statutory forfeiture” because the declaration of a groundwater basin is relevant only to the
State Engineer who must declare a groundwater basin in order to obtain jurisdiction over the
administration of groundwater. Moreover, the State Engineer contends that because
statutory forfeiture does not require action by the State Engineer, his jurisdiction over the
groundwater has no bearing on the issue.

{20} Defendants’ failure, in their brief in chief, to cite any on-point authority to support
the argument that the forfeiture statute is in any way limited by Section 72-12-1, combined
with their apparent concession of the issue by virtue of failing, in their reply brief, to respond
to the State Engineer’s argument, causes us to decline further review of this issue. See
Valdez v. Yates Petroleum Corp., 2007-NMCA-038, ¶ 24, 141 N.M. 381, 155 P.3d 786
(declining to consider an issue for which the appellant had failed to cite any “on-point”
supporting authority); Delta Automatic Sys., Inc. v. Bingham, 1999-NMCA-029, ¶ 31, 126
N.M. 717, 974 P.2d 1174 (concluding that the appellant had conceded an argument that was
raised in the appellee’s answer brief but not addressed in the appellant’s reply brief).

2.      The Amount of Land Issue

{21} Defendants contend that the district court erred in finding that the land in question
consisted of less than fifty acres because the finding was not based on substantial evidence.
Defendants fail to point out where, in the record, the finding they refer to was made. The
State Engineer responds that the special master entered no finding of fact as to the full
acreage of Defendants’ land and that the amount of acreage was not relevant to the outcome
of the case. We agree with the State Engineer. We see no need to address this point further.
See Bank of N.Y. v. Romero, 2011-NMCA-110, ¶ 8, 150 N.M. 769, 266 P.3d 638 (“[W]here
a party fails to cite any portion of the record to support its factual allegations, we need not
consider its argument on appeal.”).

3.      The Clear and Convincing Evidence Issues

{22} Defendants contend that the district court “erred in adopting findings which did not
recite that the matters found were found by clear and convincing evidence.” Defendants do
not point to any particular findings, and they focus their argument on clear and convincing
evidence of intent to abandon. Specifically, Defendants appear to contend that both the
special master and the district court erred by failing to “establish, in writing, that the facts
found in this case were found by ‘clear and convincing evidence’.”

{23} The special master concluded that “the proponent of the abandonment claim[] ha[d]
the burden of proving abandonment by clear and convincing evidence.” This conclusion
indicates that the special master was aware of the proof standard. Defendants present
nothing to indicate that the special master and the district court did not apply the correct
standard to any finding of fact that required it; and without any indication to the contrary,
we will not assume that the special master and the court failed to apply the “clear and

                                                7
convincing” standard of proof when evaluating the evidence. “[A]n order or judgment by
a district court adopting a special master’s report will be upheld on appeal if the special
master’s findings are supported by substantial evidence.” Lozano v. GTE Lenkurt, Inc.,
1996-NMCA-074, ¶ 15, 122 N.M. 103, 920 P.2d 1057. “[T]he district court must accept the
special master’s findings of fact unless they are clearly erroneous.” Id. ¶ 16. We will
presume that the district court has undertaken the requisite review of the special master’s
findings in the absence of evidence to the contrary. Cf. Bannistor v. Ullman, 287 F.3d 394,
399-400 (5th Cir. 2002) (stating that “a district court’s statement that it conducted de novo
review is presumptively valid, if not dispositive” and recognizing that the district court is
presumed to have followed the law and to have abided by its statutorily commanded duty);
Esquibel v. Hallmark, 92 N.M. 254, 256, 586 P.2d 1083, 1085 (1978) (stating that in
reviewing a trial court’s findings of fact for substantial evidence, the appellate courts
“entertain all reasonable presumptions in favor of the correctness of the trial court’s
findings”); Sanchez v. Saylor, 2000-NMCA-099, ¶ 12, 129 N.M. 742, 13 P.3d 960 (“We
indulge every presumption in favor of the correctness of the findings, conclusions, and
judgment of the district court.”); State ex rel. Martinez v. Parker Townsend Ranch Co., 118
N.M. 787, 790, 887 P.2d 1254, 1257 (Ct. App. 1992) (stating that it is the obligation of this
Court to “entertain all reasonable presumptions in favor of the correctness of the district
court’s findings, conclusions, and judgment”), aff’d, 118 N.M. 780, 887 P.2d 1247 (1994).

{24} Defendants also contend that the “court erred in concluding that the presumption of
intent to abandon met the clear and convincing standard.” In support of this contention, and
in an ostensible effort to persuade this Court that they presented evidence sufficient to
overcome the presumption of abandonment, Defendants offer a number of facts, none of
which are supported by references to the record. In spite of the lack of this assertion’s
clarity, we will address the presumption and the evidence required to invoke it. A water
rights owner can avoid the common law abandonment that arises after a protracted period
of nonuse by establishing the absence of intent to abandon the water right. See Reynolds,
80 N.M. at 147, 148, 452 P.2d at 481, 482 (stating that “the element of intention is required
in the doctrine of abandonment” and stating further that “[a]fter a long period of nonuse, the
burden of proof shifts to the holder of the right to show the reasons for [the] nonuse” and to
demonstrate the absence of intent to abandon).

{25}   In regard to abandonment, the special master concluded that the State Engineer had

       the burden of proving abandonment by clear and convincing evidence[;]

       . . . . [that] [p]roof of a sustained period of [nonuse] of water triggers a
       presumption of intent to abandon a water right[;]

       . . . . [that] Defendants [had] not argued that the abandonment presumption
       should not be applied in the circumstances of this case[;]




                                              8
       . . . [that the] presumption shifted the burden of going forward with the
       evidence to . . . [D]efendants . . . to rebut or meet the presumption[;]

       ....

       . . . [and] [D]efendants [failed to present] sufficient and credible evidence of
       their intent not to abandon.

Thus, the record reflects that the special master considered evidence presented by both
parties and nevertheless determined that Defendants’ presentation was insufficient to
overcome the presumption of abandonment. To the extent that Defendants’ partial
reiteration, in their brief-in-chief, of the testimony and facts presented below constitutes an
invitation to reweigh the evidence, we decline to do so. See Bank of N.Y., 2011-NMCA-110,
¶ 7 (“[W]e will not reweigh the evidence nor substitute our judgment for that of the fact
finder.” (internal quotation marks and citation omitted)). We are in no way persuaded that
the State Engineer failed by clear and convincing evidence to establish proof sufficient to
invoke the presumption of intent to abandon. And we reject Defendants’ contention that the
court erred in concluding as much.

4.     The Periodic and Merely Inconvenient Access Issue

{26} Defendants contend that the district court “erred in finding that periodic access by
a single vehicle was evidence of sufficient legal and practical access which would have
allowed [D]efendants to clear the ground, move in and out machinery sufficient for
cultivation and the attendant application of waters to these lands.” They argue that the facts
did not support the court’s finding and also that the facts did not “demonstrate that [they] had
the legal right of access such that the failure to make the physical access practicable was
their responsibility.” Defendants contend that “[t]he ability of a single vehicle to traverse
federal lands without detection does not constitute viable legal access.” They argue further
that the record demonstrates that it became impracticable after 1956 to continue to cross the
Rio Grande to farm the land and that access was too difficult in that regard such that they
were unable to find sharecroppers to farm the land, and that “[i]t soon became painfully
obvious that it was futile to continue to seek access.”

{27} Regarding their lack of viable access, Defendants specifically point to three of the
court’s findings. To the extent Defendants’ discussion is an argument concerning lack of
substantial evidence to support the findings, only two are at issue, namely:

               10.    No road of any type leads to the [p]roperty. Despite the
       absence of a road, the [p]roperty can be physically accessed from three
       directions. The [p]roperty can be accessed by vehicle from the south by
       driving approximately 1.3 miles north along the river bank from the Arroyo
       Cuervo diversion dam using a pathway created by previous vehicle traffic.
       The [p]roperty can also be accessed by vehicle from the north by departing

                                               9
       from an existing farm road and traveling approximately 1.4 miles south along
       the river bank using a pathway created by previous vehicle traffic. Finally,
       the [p]roperty can be accessed by crossing the river (by boat or, when the
       river is low, by vehicle or on foot).

               ....

               12.     While the lack of a road renders physical access to the
       [p]roperty, inconvenient, access is not unusually difficult. Defendant Tomas
       Gonzalez testified that he generally visits the [p]roperty once or twice a year.
       When he does so, he either walks across the river or approaches the
       [p]roperty from the south by driving along the river[]bank in a four wheel
       drive vehicle. According to [Defendant] Gonzalez, use [of] a four wheel
       drive vehicle is necessary to traverse sandy patches and arroyos. Mr. John
       Verploegh, a [w]ater [r]ights [s]pecialist employed by the [s]tate, testified
       that use of a four wheel drive vehicle when driving along the western bank
       is unnecessary. According to Mr. Verploegh, vehicles can travel without
       engaging four wheel drive by driving on pathways created by other vehicles
       that previously traversed the same route over the years. [The court] find[s]
       Mr. Verploegh’s testimony credible.

Defendants fail to show how these findings are unsupported by substantial evidence.
Defendants rely principally on Defendant Tomas Gonzalez’s testimony presented by
Defendants to support access difficulty. In violation of Rule 12-213(A)(3) NMRA,
Defendants fail to set out all of the evidence bearing on the issue. The record shows
substantial evidence from which reasonable inferences can be drawn to support the court’s
findings, and we will not reweigh the evidence or substitute our judgment for that of the
special master or the district court. See Bank of N.Y., 2011-NMCA-110, ¶ 7 (stating that in
reviewing substantial evidence claims, the question before this Court “is not whether
substantial evidence exists to support the opposite result, but rather whether . . . the result
reached” is supported by substantial evidence and further stating that this Court “will not
reweigh the evidence nor substitute our judgment for that of the fact finder” (internal
quotation marks and citations omitted)). We reject Defendants’ arguments that amount to
an attack on the court’s findings as unsupported by the evidence.

The Jury Demand Issue

{28} Defendants contend that the district court “erred in entering judgment without
determining the issue of Defendants’ demand for trial by a jury of twelve.” We review this
legal issue de novo. Gutierrez v. Intel Corp., 2009-NMCA-106, ¶ 11, 147 N.M. 267, 219
P.3d 524. We disagree with Defendants’ contention.

{29} This was a sub-file water right forfeiture proceeding submitted by the district court
to a special master, within a stream adjudication. A stream adjudication is a “special

                                              10
statutory proceeding” commenced under NMSA 1978, Section 72-4-15 (1907). State ex rel.
State Eng’r v. Comm’r of Public Lands, 2009-NMCA-004, ¶ 8, 145 N.M. 433, 200 P.3d 86.

                It was the purpose of the Constitution framers to retain the right to
        trial by jury as it heretofore existed in the Territory of New Mexico except
        in special proceedings unless express provision for jury trial was included
        therein.

El Paso Elec. v. Real Estate Mart, Inc., 98 N.M. 490, 495, 650 P.2d 12, 17 (Ct. App. 1982).
It was, therefore, a special proceeding that falls within the jury trial right exception.
Defendants do not provide any authority to overcome the special statutory proceeding
exception, nor do they provide any authority to support their argument, raised for the first
time in their reply brief, that they are entitled to a jury trial because their property rights in
and to water rights are common law rights. See Leszinske v. Poole, 110 N.M. 663, 666, 798
P.2d 1049, 1052 (Ct. App. 1990) (“[A]n issue raised for the first time in the reply brief will
not be considered.”); see also In re Adoption of Doe, 100 N.M. 764, 765, 676 P.2d 1329,
1330 (1984) (stating that an appellate court will not consider an issue if no authority is cited
in support of the issue and will assume that no such authority exists). We therefore decline
further consideration of Defendants’ jury demand issue.

CONCLUSION

{30} We affirm the district court’s order adopting the special master’s report and denying
objections and the district court’s judgment and sub-file order adopting the special master’s
report, each filed June 15, 2010.

{31}    IT IS SO ORDERED.

                                                ____________________________________
                                                JONATHAN B. SUTIN, Judge

WE CONCUR:

____________________________________
CELIA FOY CASTILLO, Chief Judge

____________________________________
TIMOTHY L. GARCIA, Judge

Topic Index for State of NM ex rel OSE v. Elephant Butte Irrigation Dist., No. 30,584

APPEAL AND ERROR
Standard of Review


                                               11
CIVIL PROCEDURE
Right to Trial by Jury

CONSTITUTIONAL LAW
New Mexico Constitution, General
Trial by Jury

GOVERNMENT
State Engineer

NATURAL RESOURCES
Irrigation
Water Law

PROPERTY
Abandonment




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