 1   This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
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 6
 7          IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 8 LION’S GATE WATER,

 9          Plaintiff-Appellant,

10 v.                                                                           NO. 29,895

11 NEW MEXICO STATE ENGINEER,

12          Defendant-Appellee.

13 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY
14 George P. Eichwald, District Judge

15 Robert S. Simon
16 Albuquerque, NM

17 for Appellant

18 Office of the State Engineer
19 DL Sanders, Chief Counsel - Special Assistant Attorney General
20 Santa Fe, NM

21 for Appellee


22                                 MEMORANDUM OPINION

23 BUSTAMANTE, Judge.

24          Lion’s Gate Water (Lion’s Gate) appeals the district court’s order affirming the

25 decision of the New Mexico State Engineer (State Engineer) that the water in the Rio
 1 Grande was fully appropriated. In our notice, we proposed to affirm the district court.

 2 Both parties have timely responded. We have considered their arguments and affirm.

 3        Plaintiff first contends that the district court applied the wrong standard in

 4 reviewing the State Engineer’s decision. In our notice, we proposed to conclude that

 5 the district court had applied the correct standard. Since that notice, the New Mexico

 6 Supreme Court has made clear the standard to be applied in appeals to the district

 7 court from the State Engineer’s decisions. Lion’s Gate Water v. John D’Antonio,

 8 2009-NMSC-057, ¶ 17, ____ N.M. ____, ____ P.3d ____. In that case, the Supreme

 9 Court explained that the de novo standard of review was limited to the issues before

10 the State Engineer. Thus, in this case, as in the Supreme Court case, the district

11 court’s review was a de novo review limited to whether the water of the river from

12 which Lion’s Gate sought an appropriation had been fully appropriated. Contrary to

13 Lion’s Gate’s assertion on appeal, the record shows that the district court reviewed de

14 novo the motions for summary judgment and reached its own conclusions. [RP vol.

15 V, 1269-73]

16        Lion’s Gate’s continued reliance on In re Application of Carlsbad Irrigation

17 Dist., 87 N.M. 149, 530 P.2d 943 (1974), is misplaced. As the Supreme Court

18 explained in Lion’s Gate, that case simply reiterated that the district court was not

19 limited to a record review and was free to determine whatever was necessary to


                                              2
 1 dispose of the issue decided by the State Engineer. Lion’s Gate, 2009-NMSC-057,

 2 ¶ 35. Carlsbad Irrigation does not support Lion’s Gate’s claim that the district court

 3 can consider any issue raised by a water rights application.

 4        Lion’s Gate continues to argue that it presented issues of material fact regarding

 5 whether the Rio Grande had been fully appropriated. However, as we pointed out in

 6 our notice, the facts presented do not go to that issue, but rather to whether the

 7 appropriations were unlawful. Lion’s Gate’s memorandum simply restates the factual

 8 assertions that it made below. [MIO 6-18] This Court has already reviewed those

 9 assertions and concluded that they do not create issues of material fact going to

10 whether or not the river water has been fully appropriated.

11        We conclude that the district court properly reviewed de novo the summary

12 judgment motion and response and determined that Lion’s Gate had not asserted any

13 material issues of fact regarding the State Engineer’s assertion that the water of the

14 Rio Grande was fully appropriated. Therefore, for the reasons stated herein and in the

15 notice of proposed disposition, we affirm.

16        IT IS SO ORDERED.


17
18                                          MICHAEL D. BUSTAMANTE, Judge




                                              3
1 WE CONCUR:


2
3 CYNTHIA A. FRY, Chief Judge


4
5 TIMOTHY L. GARCIA, Judge
6




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