Bounds v. New Mexico, et al., No. 32,713, 2013 N.M. LEXIS 254 (N.M. Sup. Ct. Jul. 25, 2013)

(plaintiff, rancher/farmer in fully appropriated area of the state (NM) brought facial constitutional challenge against state Domestic Well Statute (Sec. 72-12-1.1); statute requires State Engineer to issue domestic well permits without determining availability of unappropriated water; plaintiff claimed that statute violated state prior appropriated doctrine and plaintiff's due process of law rights; trial court ruled for plaintiff, but appellate court reversed on basis that prior appropriation doctrine is not system of administration and does not specify how senior rights are to be protected; accordingly appellate court determined that legislature could enact exception allowing additional appropriation for domestic purposes as long as senior water rights not impaired or subject to impending impairment; on further review, state Supreme Court affirmed; plaintiff could not show actual injury, and personally took advantage of Domestic Well Statute before bringing suit when developing portion of ranch; issuance of permit for domestic well is not, on its face, an absolute right to take and use water pursuant to the permit because permit could be issued but not allow for actual diversion; water rights are conditional in nature and, as such Domestic Well Statute not facially unconstitutional because it only concerns permitting and not administration; state constitution does not require identical permitting procedures for all appropriations; senior appropriators still have other remedies under law such as making a call on the water in the time of shortage, or make an as-applied challenge against the Domestic Well Statute; no due process violation because no deprivation of property involved).