Use it or lose it: NM Supreme Court rules unused water rights can be lost even if some of the water is used

New Mexicans who do not use all of their groundwater rights for a certain length of time can lose the rights to the unused portion, according to a new ruling out of the state Supreme Court. A well that once provided water to steam engines on a bustling railroad in the now-defunct railroad and mining town of Cutter, located in Sierra County near Truth or Consequences, ceased operations. Since then, only three acre-feet of water per year has been used and the water rights have been transferred to a new owner. This water came from a well built to supply the railroad and livestock. Cutter dates back to the late 1800s when it formed as a mining community.

NM Supreme Court issues written opinion in stream access case

The New Mexico Supreme Court on Thursday issued a written opinion regarding public access to river and stream beds that explained the court’s reasoning for a decision from the bench earlier this year. 

In March, the supreme court issued a ruling from the bench, after a brief deliberation, that river and stream beds are just as public as the water above them. On Thursday, in an opinion written by New Mexico Supreme Court Chief Justice Michael Vigil, the court further explained its unanimous decision.     

“The question here is whether the right to recreate and fish in public water also allows the public the right to touch the privately owned beds below those waters,” Vigil wrote. “We conclude that it does.”

The high court stressed that “the public’s easement includes only such use as is reasonably necessary to the utilization of the water itself and any use of the beds and banks must be of minimal impact.”

“Walking and wading on the privately owned beds beneath public water is reasonably necessary for the enjoyment of many forms of fishing and recreation,” Vigil wrote. “Having said that, we stress that the public may neither trespass on privately owned land to access public water, nor trespass on privately owned land from public water.”

The state supreme court’s opinion also stated that not only was it unconstitutional to bar wading or fishing in streams and rivers with privately owned beds, but that it was also unconstitutional for the New Mexico State Game Commission to issue regulations barring those activities on privately owned river beds. 

The Game Commission has since repealed the rule that allowed people to petition to have sections of water that flowed through their property closed to public access. “We conclude not only that the Regulations are unconstitutional, but also that the Commission lacked the authority to promulgate the Regulations,” Vigil wrote. 

The legal battle goes back to 2015 when the New Mexico Legislature enacted a new section of existing law that prohibited access to privately owned river beds within non-navigable waters. That law change spurred a handful of environment and outdoor recreation groups to file a writ of mandamus, or a request for the court to intervene.

NM Supreme Court upholds dismissal of case involving COVID-19 conditions in prisons

The New Mexico Supreme Court today on Thursday issued a written opinion that upheld a lower court’s dismissal of a lawsuit aimed at the state’s correctional department over the release of inmates during the height of the COVID-19 pandemic. 

In the opinion, New Mexico Supreme Court Justice Michael Vigil wrote that a Santa Fe District Court judge was right to dismiss a lawsuit against the state that sought to release inmates as a precaution against COVID-19 outbreaks in state correctional facilities. The lower court judge dismissed the case on the grounds that the plaintiffs, who were eight inmates, the American Civil Liberties Union of New Mexico and the New Mexico Criminal Defense Lawyers Association, did not first exhaust all administrative appeal options before filing the suit. Vigil wrote that a “balance must be struck” that allows the New Mexico Corrections Department to address concerns through a grievance process but does not overburden the department. 

“We cannot say that the entire inmate population of New Mexico may be considered to have exhausted administrative remedies simply because some unnamed class member/inmate tried to file a grievance,” Vigil wrote. “Similarly, we cannot say that the nearly 6,000 inmates must each individually show they have exhausted administrative remedies. Such a requirement for all class members could unduly burden the prison’s complaint system and delay resolution of grievances.” 

The original suit asked the court to order the Corrections Department to lessen the population in state correctional facilities and to take further steps to protect inmates from COVID-19 by providing masks and testing and to better isolate inmates who became infected. 

The high court also ruled that the administrative appeal requirement in cases like this is “satisfied as to an entire plaintiff class when one or more named class members have exhausted administrative remedies for each claim raised by the class,” but the court also noted that none of the plaintiffs in the case filed an administrative appeal with the Department of Corrections.

Guv and AG file motion to dismiss lawsuit challenging New Mexico’s legal abortion status

Gov. Michelle Lujan Grisham and New Mexico Attorney General Hector Balderas filed a motion on Thursday to dismiss a lawsuit challenging New Mexico’s legal abortion status. Filed in the Fifth Judicial District Court in Chaves County in late June by state Sen. David Gallegos, R-Eunice, Roswell-based write-in Independent candidate for New Mexico Commissioner of Public Lands Larry Marker and Albuquerque-based former Republican primary candidate for Governor Ethel Maharg, the original suit challenged the fact that New Mexico legislature’s repeal of the state’s 1969 anti-abortion law allows legal abortion across the state. “Simply stated, no law, act or statute exists that allows for or legalizes abortion procedures in the state of New Mexico,” the lawsuit stated. Abortion remains legal in the state of New Mexico because the 2021 Legislature repealed the 1969 law that banned abortion, criminalizing it with few exceptions. Lujan Grisham signed the Respect New Mexico Women and Families Act in February 2021, before the legislature ended its session.

End of moratorium on evictions could lead to crisis, say family advocates

With the New Mexico Supreme Court’s pandemic-era inspired moratorium on evictions about to end, the court announced it will phase-in a statewide program to help tenants access money starting in April. But family advocates have said that approximately 80,000 renter households are at risk in the state for eviction. Divya Shiv, a research and policy analyst for New Mexico Voices for Children, told NM Political Report that the 43 percent of residents in the state reporting a high likelihood of eviction or foreclosure because they are not current on their rent or mortgage is higher than the national average, which is 35 percent. With the moratorium ending on evictions for tenants with unpaid rent, this could lead to a crisis of unhoused families in New Mexico, Shiv said. “Evictions are really harmful and it’s incredibly destabilizing for families and children,” she said.

NM Supreme Court rules citizen grand juries on state emergency orders are invalid

The New Mexico Supreme Court ruled on Monday that a handful of citizen-initiated grand jury petitions filed against Gov. Michelle Lujan Grisham in response to her public emergency orders are “facially invalid.” 

In the order directing several lower courts to dismiss the citizen-initiated grand jury petitions, Chief Justice Michael Vigil wrote that the state’s mechanism that allows citizens to call for a grand jury for public officials who violate state law does not apply to the governor’s COVID-19 public health orders. 

“This Court previously has held that [Lujan Grisham] acted lawfully and within the scope of her executive authority when she declared a public health emergency due to the COVID-19 pandemic and delegated power to the Secretary of Health to issue further emergency orders to protect public health and safety,” Vigil wrote. 

The order instructed lower courts to deny such grand jury petitions as they “only describe lawful, noncriminal activity.”  

The New Mexico Constitution allows citizens to file petitions asking a state district court to convene a grand jury to look into possible criminal activity of an elected official. In the order, the state supreme court also asked a judicial committee to consider rule changes that would make the citizen grand jury process more transparent as the current process involves sealed and confidential proceedings. Lujan Grisham’s office filed the supreme court petition last fall, asking justices to weigh in on the validity of the handful of grand jury petitions filed in state district courts aiming to investigate alleged criminal actions in issuing the public health orders. Since Lujan Grisham started issuing emergency public health orders in response to the COVID-19 pandemic, several state supreme court petitions have been filed challenging those orders. The New Mexico Supreme Court has ruled in favor of the governor in all of the cases they have issued opinions on. 

NM Supreme Court rules non-navigable water rule is unconstitutional

The New Mexico Supreme Court ruled unanimously on Tuesday in favor of recreation groups who sued over access to waterways running through private property. In 2020, a trio of groups including Adobe Whitewater Club, Backcountry Hunters and Anglers and the New Mexico Wildlife Federation challenged the New Mexico Game Commission’s non-navigable waters rule in an effort to get a clear ruling about stream access. 

The Stream Access Law that passed in 2015 led to the game commission promulgating rules allowing landowners to seek certificates deeming the water flowing through their property as non-navigable, effectively closing off access to that section of water to wading and walking. Tuesday’s ruling found that the non-navigable waters rule violates the state’s constitution. The certificates that have been issued will be voided. 

The plaintiffs argued that the state constitution gives rights for the public to wade in streams that cross private property, as long as they remain in the waterway. But some private property owners said this was trespassing and argued that the constitution only gave people the right to use the waterways if they did not touch the bottom.

NM Supreme Court tosses cannabis tax case

The New Mexico Supreme Court effectively ended a years-long legal battle over medical cannabis and taxes. 

In an order filed on Wednesday morning, the court wrote that a previous decision from the New Mexico Court of Appeals that medical cannabis was exempt from gross receipts taxes prior to June 2021 should be upheld. 

“Having considered the petition, response, and briefs of the parties, the judgment of the Court is that the writ shall be quashed as improvidently granted,” the court wrote. 

In other words, the high court should have never accepted the case. 

The lawyer for Sacred Garden, the medical cannabis company that sparked the legal battle, did not respond to a request for comment. 

Duke Rodriguez, whose cannabis company Ultra Health joined the case last year, told NM Political Report on Wednesday that he was “thrilled” with the high court’s decision. 

“I think it’s a recognition that the state never had the legal authority to collect gross receipts tax on the sale of [medical] cannabis,” Rodriguez said. “This finally rights that wrong.”

The issue of gross receipts tax, which is often incorrectly referred to as a sales tax, and cannabis goes back several years, and spans two gubernatorial administrations, when medical cannabis producer Sacred Garden requested a refund for the gross receipts taxes it paid to the state. Sacred Garden’s reasoning was that medical cannabis was essentially the equivalent to other prescription drugs, which are exempt from gross receipts tax. Through an administrative hearing, the state’s Taxation and Revenue Department, under then-Gov. Susana Martinez, denied the request. Sacred Garden took the issue to the New Mexico Court of Appeals, which ultimately ruled that a recommendation for medical cannabis by a qualified medical professional was the same as a prescription for other types of medication. 

In early 2020, the department, which was by then under current Gov. Michelle Lujan Grisham, challenged the court of appeals decision and filed a petition with the state supreme court.

NM Supreme Court to hear oral arguments in medical cannabis tax case

The New Mexico Supreme Court this week scheduled oral arguments for a case regarding medical cannabis sales and gross receipts taxes. 

Lawyers for the New Mexico Attorney General’s Office and two medical cannabis businesses will have an opportunity to make their respective arguments on Feb. 28 as to whether or not medical cannabis sales should have been exempt from gross receipts taxes prior to the state’s Cannabis Regulation Act that went into effect last June. 

The issue goes back several years to when medical cannabis producer Sacred Garden asked the state’s Taxation and Revenue Department for a refund of multiple years worth of gross receipts taxes the company paid. Initially, a hearing officer ruled in favor of the state, but that ruling was eventually reversed by the New Mexico Court of Appeals. In February 2020, the state took the issue to the state supreme court, where it has been pending since. In June 2021, medical cannabis company Ultra Health joined the case as an amicus curiae, or friend of the court. 

In previous court filings, Sacred Garden and Ultra Health argued that like prescription drugs, medical cannabis should have always been exempt from the state’s gross receipts tax, which is sometimes incorrectly referred to as a sales tax.

Utilities appeal PRC decisions to the state Supreme Court

As utilities race to meet renewable energy targets set forth in the Energy Transition Act, two of the state’s investor-owned utilities have asked the New Mexico Supreme Court to review decisions the New Mexico Public Regulation Commission has made in cases that they say will impact their transition. The Public Service Company of New Mexico appealed the final orders in both the Four Corners Power Plant ownership transfer and the Avangrid merger. Southwestern Public Service Company appealed the final order in its renewable portfolio standard case in which the PRC rejected its request for a financial incentive to retire renewable energy certificates early so that it could reach renewable energy targets early. PNM filed the appeal on the Four Corners Power Plant transfer on Dec. 22.