Certiorari Denied, No. 31,412, January 12, 2009

      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-016

Filing Date: October 20, 2008

Docket No. 28,005

PEÑA BLANCA PARTNERSHIP,

      Appellant-Appellee,

v.

SAN JOSE DE HERNANDEZ COMMUNITY
DITCH a/k/a SAN ANTONIO DEL GUACHE,
GERALD WINSEMIUS, JOSEPH SALAZAR,
and ARTURO A. MARTINEZ,

      Appellees-Appellants,

consolidated with

RICHARD COOK,

      Appellant-Appellee,

v.

LA ACEQUIA DEL GAVILAN, JERRY
GONZALES, CRAIG BORNER, and TIM
VIERICK, Commissioners,

      Appellees-Appellants.


APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
Daniel A. Sanchez, District Judge


Stein & Brockmann, P.A.
Jay F. Stein

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Kimberly M. Bannerman
Santa Fe, NM

for Appellees

Holland & Hart, LLP
Kristina Martinez
Santa Fe, NM

New Mexico Legal Aid, Inc.
David Benavides
Ryan Golton
Santa Fe, NM

for Appellant San Jose de Hernandez Community Ditch

Humphrey & Odé, P.C.
Mary E. Humphrey
Connie Odé
El Prado, NM

for Appellant La Acequia del Gavilan

G. Emlen Hall
Peter Thomas White
Santa Fe, NM

for Amicus Curiae New Mexico Acequia Commission

                                        OPINION

KENNEDY, Judge.

{1}     This interlocutory appeal requires the Court to decide whether NMSA 1978, Section
73-2-21(E) (2003), regarding the standard of review in an appeal to the district court from
a decision by the commissioners of an acequia, violates either article XVI, section 5 or the
equal protection clause of article II, section 18 of the New Mexico Constitution. As we
conclude that the statute violates neither constitutional provision, we reverse the district
court’s contrary decision and remand for further proceedings under the appropriate statutory
standard of review.

BACKGROUND

{2}    This case involves appeals to the district court from decisions by the commissioners

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of two different acequias (Acequias) denying the requests of water rights owners (Owners)
to change the use of their water right. In one of the cases, the commissioners of the San Jose
de Hernandez Community Ditch denied Peña Blanca Partnership’s application to transfer to
a subdivision for residential use certain water rights that were once appurtenant to
agricultural property served by the Acequia. In the other case, the commissioners of the
Acequia del Gavilan denied Richard Cook’s application to transfer water rights that were
once appurtenant to ten acres of land served by the Acequia to a pond in order to offset
evaporative losses from the pond.

{3}     Under New Mexico law, the Acequia commissioners were authorized to reject each
Owner’s proposal to change the use of the Owner’s water rights “only if the commissioners
determine[d] that [the change] would be detrimental to the acequia . . . or its members.”
Section 73-2-21(E). In each case, the commissioners denied the request to change the use
of the water rights because such a transfer would (1) lead to absentee owners, less
participation in the necessary maintenance of the ditch, and increased burdens on the local
Acequia members; (2) divert water from its traditional uses for irrigation to other uses; (3)
leave less water for irrigation of crops, which would therefore affect the local culture; (4)
impact subsurface water; and (5) result in less water for other members of the Acequia,
among other reasons.

{4}     Owners appealed the decisions of the Acequia commissioners to the district court
pursuant to Section 73-2-21, which states that if the party proposing the change in use of the
water rights

       is aggrieved by the decision of the commissioners, he may appeal the
       decision in the district court of the county in which the acequia or community
       ditch is located within thirty days of the date of the decision. The court may
       set aside, reverse or remand the decision if it determines that the
       commissioners acted fraudulently, arbitrarily or capriciously, or that they did
       not act in accordance with law.

Section 73-2-21(E).

{5}     The district court consolidated the cases prior to reaching the merits of whether the
commissioners in either case acted fraudulently, arbitrarily, capriciously, or not in
accordance with law by finding that the proposed change would be detrimental to either
acequia or its members. A hearing was held on the issue of whether the deferential standard
of review set out in Section 73-2-21(E) conflicted with either article XVI, section 5 or the
equal protection clause of article II, section 18 of the New Mexico Constitution. The district
court concluded that the deferential standard of review was unconstitutional on its face and
certified its order to this Court for interlocutory appeal. This Court granted Acequias’
unopposed application for an interlocutory appeal.

SCOPE OF THIS COURT’S REVIEW OF AN INTERLOCUTORY ORDER

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{6}     The parties disagree about the issues to be decided in this appeal. Acequias contend
that this Court should address only those issues directly addressed in the order that was
certified for interlocutory appeal. Owners argue that this Court should address any issues
that were raised, even if they are not expressly included in the interlocutory order. We agree
with Acequias that the only issues this Court should consider are those that come within the
scope of the interlocutory order.

{7}      Because an interlocutory appeal is a limited exception to this Court’s general rules
prohibiting piecemeal appeals, this Court has generally construed the exception narrowly and
refrained from deciding issues that did not form the basis of the order actually appealed
from. See, e.g., Bell v. Estate of Bell, 2008-NMCA-045, ¶ 9, 143 N.M. 716, 181 P.3d 708
(declining to address a claim that was not specifically certified for interlocutory appeal and
that did not form the basis of the district court’s order), cert. granted, 2008-NMCERT-004,
144 N.M. 48, 183 P.3d 933. Although this Court is not constrained by the particular
questions a district court certifies for appeal, we do limit the scope of our review to the
issues fairly contained in the order. See Ellis v. Cigna Prop. & Cas. Cos., 2007-NMCA-123,
¶¶ 12-14, 142 N.M. 497, 167 P.3d 945 (dismissing an interlocutory appeal as improvidently
granted when the issue argued by the appellant was not addressed on the merits by the
district court’s order), cert. denied, 2007-NMCERT-009, 142 N.M. 715, 169 P.3d 408; see
also Armijo v. Wal-Mart Stores, Inc., 2007-NMCA-120, ¶ 19, 142 N.M. 557, 168 P.3d 129
(stating that on appeal from an interlocutory order, an appellate court can decide issues other
than those certified, and reviewing several legal determinations that were not stated in the
questions certified but that were encompassed by the district court’s interlocutory order),
cert. denied, 2007-NMCERT-009, 142 N.M. 715, 169 P.3d 408; cf. Yamaha Motor Corp.,
U.S.A. v. Calhoun, 516 U.S. 199, 204-05 (1996) (stating that under the federal statute
governing interlocutory appeals, a federal appellate court has jurisdiction over “any issue
fairly included within the certified order” and that although the appellate court is not limited
to the particular questions certified by the district court, it “may not reach beyond the
certified order to address other orders made in the case”).

{8}     Here, the district court’s order included two determinations: First, that Section 73-2-
21(E) violates article XVI, section 5 of the New Mexico Constitution, which affords owners
of water rights a constitutional right to a de novo hearing in the district court on appeal from
a decision by an administrative body regarding a change in the use of water rights. And
second, that the deferential Section 73-2-21(E) standard of review is unconstitutional on its
face as violative of equal protection principles, since owners of water rights that are not
subject to the authority of an acequia’s commissioners are entitled to a de novo hearing in
the district court after a decision by the State Engineer. See NMSA 1978, § 72-7-1(A), (E)
(1971) (allowing an applicant to the State Engineer for a change in the use of water rights
to appeal an adverse decision to the district court and providing for a de novo appeal “as
cases originally docketed in the district court”). In accordance with a preference to have trial
courts decide issues in the first instance, see, e.g., State v. Gutierrez, 116 N.M. 431, 435 n.7,
863 P.2d 1052, 1056 n.7, we decline to address the additional arguments raised by Owners
regarding substantive due process, procedural due process, vagueness, and their takings

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claim. These arguments, if properly addressed below, can be raised in an appeal after a final
decision in the district court.

APPLICABILITY OF ARTICLE XVI, SECTION 5 OF THE NEW MEXICO
CONSTITUTION

{9}      Owners argue that article XVI, section 5 of the New Mexico Constitution affords
them a constitutional right to a de novo hearing in the district court on appeal from the
decision of the Acequia commissioners. That provision states that “[i]n any appeal to the
district court from the decision, act or refusal to act of any state executive officer or body in
matters relating to water rights, the proceeding upon appeal shall be de novo as cases
originally docketed in the district court unless otherwise provided by law.” N.M. Const. art.
XVI, § 5. We review de novo the interpretation of this constitutional provision. See State
v. Isaac M., 2001-NMCA-088, ¶ 4, 131 N.M. 235, 34 P.3d 624.

{10} The parties marshal various principles of statutory construction to debate whether
acequias are “bodies” within the meaning of this section. Acequias claim that a proper
reading of article XVI, section 5 indicates that it only applies to “state executive bodies” and
that it therefore does not apply to acequias, which are bodies corporate, given their existence
and powers by statute, and hence are not part of the executive branch. See NMSA 1978, §
73-2-11 (1903) (stating that “[a]ll community ditches or acequias shall . . . be considered as
corporations or bodies corporate, with power to sue or to be sued as such”). Owners claim
that the section clearly refers to all “state bodies,” a category that would include acequias.

{11} This Court need not resolve this dispute because even assuming that acequias come
within the provisions of article XVI, section 5, a de novo proceeding is not mandated by that
section so long as a different manner of district court review on appeal is “otherwise
provided by law.” N.M. Const. art. XVI, § 5. A different standard is “otherwise provided
by law” if it is found in some other constitutional provision or in a statute. See State ex rel.
N.M. Judicial Standards Comm’n v. Espinosa, 2003-NMSC-017, ¶ 28, 134 N.M. 59, 73 P.3d
197 (indicating that when a constitutional provision establishes a power to be exercised
“‘unless otherwise provided by law,’ that law must come from the Constitution or
legislation”). In this case, the legislature has provided for another procedure for the
decisions of acequia commissioners by enacting Section 73-2-21(E). Therefore, even
assuming that acequia commissioners come within the scope of article XVI, section 5,
application of a standard of review as set out in Section 73-2-21(E) does not violate that
constitutional provision.

WHETHER EQUAL PROTECTION PRINCIPLES REQUIRE A DE NOVO
HEARING IN THE DISTRICT COURT

{12} Owners argue that the standard of review set out in Section 73-2-21(E) violates equal
protection principles since other determinations of water rights are afforded a de novo
hearing in the district court. See § 72-7-1(E). “The constitutional right to equal protection

                                               5
concerns whether the legislature may afford a legal right to some individuals while denying
it to others who are similarly situated.” Cummings v. X-Ray Assocs. of N.M., P.C., 1996-
NMSC-035, ¶ 22, 121 N.M. 821, 918 P.2d 1321. There are three levels of judicial review
applied to legislation that is said to violate the equal protection clause of the New Mexico
Constitution. Each depends on the nature of the rights or the class of persons affected. See
Wagner v. AGW Consultants, 2005-NMSC-016, ¶ 12 & n.3, 137 N.M. 734, 114 P.3d 1050.
These are rational basis review, intermediate scrutiny, and strict scrutiny. Id. On appeal, we
review de novo the question of which level of scrutiny is to be applied. See Breen v.
Carlsbad Mun. Sch., 2005-NMSC-028, ¶ 15, 138 N.M. 331, 120 P.3d 413.

{13} Acequias contend that this Court should undertake a rational basis review of Section
73-2-21(E) rather than applying intermediate scrutiny. We agree that the acequia statutes
at issue in this case are just the sort of general social and economic laws that are ordinarily
afforded only rational basis review. See City of Raton v. Vermejo Conservancy Dist., 101
N.M. 95, 100, 678 P.2d 1170, 1175 (1984) (finding a statute to be a “rational part” of a
scheme exempting water rights in a conservancy district from the general rule that water
rights are lost if they are not used). Rational basis review applies to general social and
economic legislation, however, only if it “does not affect a fundamental or important
constitutional right or a suspect or sensitive class.” Breen, 2005-NMSC-028, ¶ 11. While
Owners concede that they are not members of a protected class, they argue that intermediate
scrutiny applies because the rights they assert are the important constitutional rights of
access to the courts and the right to an appeal. We examine the nature of the interests
Owners assert in order to determine the appropriate level of scrutiny. See id. ¶ 8.

{14} Owners rely on Wagner for their claim that the statute affects both their
constitutional right of access to the courts and the constitutional right to appeal. We agree
that Owners have a right of access to the courts derived from the due process clause of the
New Mexico Constitution, see Trujillo v. City of Albuquerque, 1998-NMSC-031, ¶ 20, 125
N.M. 721, 965 P.2d 305, and that the right includes the right to appeal from an
administrative body to the district court, see Wagner, 2005-NMSC-016, ¶ 14. We are less
certain, however, that Owners have a constitutional right to appeal distinct from their due
process right of access to the courts when the appeal is from the Acequia commissioners’
decision to the district court.

{15} Wagner discussed a worker’s contention that article VI, section 2 of the New Mexico
Constitution as the source of the appellant’s constitutional right to appeal to this Court from
a workers’ compensation administration decision. See 2005-NMSC-016, ¶¶ 13-14. In doing
so, however, Wagner did not discuss whether article VI, section 2 in fact conferred such a
right, and if so why. Although that section of our constitution provides parties with “an
absolute right to one appeal,” N.M. Const. art. VI, § 2, case law indicates that this provision
applies only to an appeal to this Court or to the New Mexico Supreme Court from an
exercise of the district court’s original jurisdiction. See VanderVossen v. City of Espanola,
2001-NMCA-016, ¶ 11, 130 N.M. 287, 24 P.3d 319 (“It is from the district court’s exercise
of original jurisdiction . . . that an aggrieved party is guaranteed ‘the absolute right to one

                                              6
appeal’ in the manner prescribed by law, whether to the Supreme Court or the Court of
Appeals.”); see also City of Las Cruces v. Sanchez, 2007-NMSC-042, ¶ 9, 142 N.M. 243,
164 P.3d 942 (stating that article VI, section 2 “only applies to cases originating in district
court”). Wagner, in fact, looked at the availability of appeal as a matter of general right to
access the court system, and in the context of the right to appeal, while evaluating how an
appeal might be chilled by the imposition of a cap on attorney fees, but it did not distinguish
the two. Id., 2005-NMSC-016, ¶¶ 14-15. Therefore, Wagner does not indicate a clear
direction such that we can hold here that article VI, section 2 provides a basis, independent
of the right of access to the courts, for an appeal from the administrative decision of a
statutory corporate body to the district court.

{16} However, because the issues in Wagner control this case and because Wagner
acknowledged that for the circumstances of that appeal, the right of access was the practical
equivalent of the right to appeal, we believe that we are bound by the analysis in Wagner.
See 2005-NMSC-016, ¶ 14 (stating that “the right to access the courts and the right to an
appeal are synonymous in the context of the workers’ compensation system, as both are
implicated when a litigant seeks to appeal an administrative decision to the judicial branch”).
Accordingly, as our Supreme Court did in Wagner, we “collectively” address the right of
access to the courts and the right to appeal. Id.

{17} While the right of access to the courts and the right to appeal are certainly important
rights, “[i]n arguing that intermediate scrutiny applies, it is not enough to simply point to an
important constitutional right; the challenger must show that the legislation in fact impacts
the exercise of this right.” See id. ¶ 16. In this case, Owners’ constitutional right of access
to the courts and their right to appeal are not significantly impacted. At the most literal
level, the statute at issue clearly affords Owners access to the courts since Owners can have
the Acequia commissioners’ determination reviewed in the district court. It also affords
Owners a right to appeal since Owners’ right of access to the courts in this case is through
their right to appeal to the district court.

{18} Although Owners argue that the review afforded by the statute is not “meaningful”
because it is not a de novo proceeding, Owners fail to persuade this Court that a hearing de
novo is necessary for meaningful review on appeal. Owners have no separate constitutional
right to any particular standard of review once they are in the district court since article XVI,
section 5 permits the legislature to establish a standard of review other than de novo.
Statutes prescribe the type of appellate process allowed once a party comes to court. And
considering that many administrative proceedings are appealed to the district court under
standards that do not provide for a hearing de novo in the district court, this Court cannot say
that the standard of review under Section 73-2-21(E) is inherently inadequate. See NMSA
1978, § 39-3-1.1 (1999), cross-references (listing scores of different types of decisions that
qualify for this standard of review). We conclude, therefore, that Owners’ constitutional
right of access to the courts and constitutional right to appeal are not substantially impacted
by Section 73-2-21(E) and that rational basis review rather than intermediate scrutiny
applies. See Wagner, 2005-NMSC-016, ¶ 18 (holding that rational basis review applied to

                                               7
a workers’ compensation statute limiting attorney fees where the appellants did not establish
that the statutory fees were so low so as to prevent litigants from being meaningfully
represented in court). This is particularly true inasmuch as Owners’ other issues appear to
be legal questions likely reviewable de novo under the “not . . . in accordance with law”
standard of Section 73-2-21(E).

{19} Owners also suggest that the standard of review set out in Section 73-2-21(E) impacts
their right to meaningful access to the courts and to a meaningful appeal because Owners
were not afforded procedural due process in the hearing before the Acequia commissioners
and that a de novo hearing in the district court is necessary to remedy this deficiency. That
argument is clearly a procedural due process claim about the nature of the Acequia hearings
in this case, not an equal protection claim about the standard of review on appeal. It is not
within the scope of our review in this interlocutory appeal, and we decline to address it as
part of Owners’ equal protection arguments.

{20} Under rational basis review, a statute will be upheld “unless the challenger can show
the provision at issue is not rationally related to a legitimate government purpose.” Wagner,
2005-NMSC-016, ¶ 12. Under this standard, we are required to “defer to the validity of the
statute” unless the challenger meets its burden of persuasion that the statute is
unconstitutional. Id. ¶ 24. That burden is “difficult” because the challenger “must
demonstrate that the challenged legislation is clearly arbitrary and unreasonable, not just that
it is possibly so[,]” and because this Court “will uphold the statute if any state of facts can
be discerned that will reasonably sustain the challenged classification.” Marrujo v. N.M.
State Highway Transp. Dep’t, 118 N.M. 753, 758, 887 P.2d 747, 752 (1994) (internal
quotation marks and citation omitted).

{21} Owners fail to meet their difficult burden in this case. Section 73-2-21(E) grants
acequia commissioners the authority to deny approval of “change[s] in point of diversion or
place or purpose of use of a water right served by the acequia” if the commissioners
determine that the change “would be detrimental to the acequia . . . or its members.” The
deferential standard of review to be applied to such decisions helps assure that acequia
commissioners, who have greater familiarity than does a district court with the unique needs
of the acequia and its members, retain the power to decide whether such changes will harm
the operation of the acequia or those who depend on it for access to their water rights. See
Wilson v. Denver, 1998-NMSC-016, ¶ 43, 125 N.M. 308, 961 P.2d 153 (recognizing that
“each ditch system is unique and has individualized needs”). In light of what Owners
concede is an “important interest” in permitting acequias to govern “the distribution of water
within the acequia,” the standard of review that leaves primary decision-making authority
in the acequias rather than shifting it to the district court for a hearing de novo on appeal is
rationally related to this purpose.

{22} Owners argue that the deferential standard of review is not rationally related to a
legitimate government interest because, Owners assert, while distribution of water rights
among those possessing such rights in an acequia has traditionally been within the acequia’s

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power, the ability to deny an owner’s request to transfer such rights has not. Owners have
not argued that Section 73-2-21(E) does not confer power to prevent the transfers with which
we are concerned. However, assuming that Section 73-2-21(E) can be fairly read to grant
acequia commissioners just such authority, Owners do not explain what principles prohibit
the legislature from delegating that authority to the commissioners of an acequia. Owners
seem to suggest that because Section 73-2-21(E) grants acequias greater authority than they
may have previously had under the law, the statute must not be rationally related to a
legitimate government interest. We disagree, and we conclude that even if Section 73-2-
21(E) grants more powers to acequia commissioners than were previously held, there is
nothing about the fact that such powers are newly conferred that undermines the
government’s legitimate interest in conferring them. Nothing we say herein, however,
should be read as indicating any opinion on the issues that we do not address in this case,
such as due process, vagueness, and takings.

CONCLUSION

{23} Because the district court erred in concluding that de novo appeals from decisions
of the boards of commissioners of two Acequias were constitutionally required, as though
the cases were originally docketed in the district court, we reverse the district court and
remand for further proceedings in accordance with Section 73-2-21(E).

{24}    IT IS SO ORDERED.

                                             RODERICK T. KENNEDY, Judge

WE CONCUR:


JONATHAN B. SUTIN, Chief Judge



LYNN PICKARD, Judge

Pena Blanca Partnership v. San Jose Community Ditch, No. 28,005

AL             Administrative Law
AL-AC          Arbitrary and Capricious Actions
AL-JR          Judicial Review
AL-sR          Standard of Review

AE             Appeal and Error
AE-IA          Interlocutory Appeal


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AE-SR   Standard of Review

CT      Constitutional Law
CT-EP   Equal Protection

NR      Natural Resources
NR-WL   Water Law




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