In Re: United States of America & State of NM v. A & R Productions, et al

Filing 3444

MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez ADOPTING 3436 REPORT AND RECOMMENDATIONS; GRANTING 3400 Joint MOTION for Judgment on the Pleadings and Memorandum of Points and Authorities in Support Thereof, Subfile No. ZRB-5-0057; GRANTING 3399 Joint MOTION for Judgment on the Pleadings and Memorandum of Points and Authorities in Support Thereof, Subfile No. ZRB-5-0056. See Order for Specifics. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, and
STATE OF NEW MEXICO, ex rel. STATE
ENGINEER,
Plaintiffs,
and

No. 01-cv-0072 MV/JHR

ZUNI INDIAN TRIBE, NAVAJO NATION,

ZUNI RIVER BASIN
ADJUDICATION

Plaintiffs in Intervention,
v.

Subfile Nos. ZRB-5-0056
ZRB-5-0057

A & R PRODUCTIONS, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER OVERRULING PLAINTIFF’S
OBJECTIONS AND ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Magistrate Judge Jerry H. Ritter’s Proposed
Findings and Recommended Disposition (“PFRD”), filed June 1, 2018 [Doc. 3436], Subfile
Defendants’ Objections to Proposed Findings and Recommended Disposition [Doc. 3437], filed
June 15, 2018, and Plaintiffs’ Joint Response to Objections to the Proposed Findings and
Recommended Disposition, filed June 29, 2018 [Doc. 3438]. The Court, having conducted a de
novo review of Defendants’ objections, hereby overrules them and adopts the PFRD for the
reasons set forth below.
I.

STANDARD OF REVIEW

“Review of the magistrate judge’s ruling is required by the district court when a party
timely files written objections to that ruling.” Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir.
1997). Specifically, “[d]e novo review is required when a party files timely written objections to

the magistrate judge’s recommendation.” In re Griego, 64 F.3d 580, 583–84 (10th Cir. 1995)
(citation omitted). “De novo review requires the district court to consider relevant evidence of
record and not merely review the magistrate judge's recommendation.” Id. “However, neither 28
U.S.C. § 636(b)(1) nor Fed. R. Civ. P. 72(b) requires the district court to make any specific
findings; the district court must merely conduct a de novo review of the record.” Garcia v. City
of Albuquerque, 232 F.3d 760, 766 (10th Cir. 2000).
II.

BACKGROUND

The two subfiles in question are a part of the larger Zuni River Basin Adjudication, whose
factual and procedural history is extensive and unnecessary to delve into for the purposes of
determining the motions at hand. The Magistrate Judge provided a thorough history relevant to
these two subfiles in the PFRD, which will be summarized here.
On June 16, 2017, Plaintiffs filed two Notices that the Consultation Period Has Ended,
which notified Subfile Defendants RWSD and RDUA that they were to file a subfile answer
within twenty days [Doc. 3378; Doc. 3379]. RWSD and RDUA then both timely filed their
respective subfile answers on July 6, 2017 [Doc. 3383; Doc. 3384].
Plaintiffs filed two separate Joint Motions for Judgment on the Pleadings, and
Memorandum of Points and Authorities in Support Thereof, as to Subfiles ZRB-5-0056 and
ZRB-5-0057, on September 18, 2017. [Doc. 3399 and Doc. 3400]. At their essence, for both
Motions concerning Subfiles ZRB-5-0056 and ZRB-5-0057, Plaintiffs contend that Subfile
Defendants RWSD and RDUA “make[] no water right claim of any kind and present[] no legal
or factual basis for this Court to issue judgment in [their] favor.” [Doc. 3399 at 5-6]; see [Doc.
3400 at 6, 8]. Neither Defendant filed a response to the Motion, and Plaintiffs filed Notices of

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Completion of Briefing for each respective subfile on October 3, 2017. [Doc. 3407; Doc. 3408].
On June 1, 2018, Magistrate Judge Jerry H. Ritter issued his Proposed Findings and
Recommended Disposition, concluding that, under New Mexico law, the burden was “on RWSD
and RDUA to justify a water right above those offered by the Plaintiffs in their respective
settlement offers,” but “both RWSD and RDUA fail[ed] to make any allegations suggesting that
they are entitled to water rights above and beyond those stipulated to by the Plaintiffs.” [Doc.
3436 at 5, 6]. He therefore recommended that the Court grant Plaintiffs’ Joint Motions for
Judgment on the Pleadings related to Subfiles ZRB-5-0056 and ZRB-5-0057. Id. at 6.
Subfile Defendants objected to the PFRD by asserting that Plaintiffs’ standard calculation
for domestic households, which the Subfile Defendants consist of, is more than twice what was
offered by Plaintiffs for these subfiles. [Doc. 3437 at 1]. They further assert that they “will prove
their historical beneficial use of water at trial.” Id. at 2. Plaintiffs jointly responded to the
objections by further explaining that during the consultation period before the subfiles were filed,
“although Defendants expressed general dissatisfaction with Plaintiffs’ settlement offers,
Defendants made no water right claim of their own.” [Doc. 3438 at 4]. Plaintiffs argue that
Defendants do not object to the Magistrate Judge’s findings or conclusions, but rather reiterate
their contention in their subfile answers that Plaintiffs’ settlement offer was insufficient, and
therefore raise no basis on which the Court can reverse the Magistrate Judge’s PFRD. Id.at 9
(citing One Parcel of Real Prop., With Bldgs., Appurtenances, Improvements, and Contents,
73 F.3d 1057, 1060 (10th Cir. 1996)).

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III.

ANALYSIS

Because Subfile Defendants filed objections to the PFRD, the Court has reviewed both the
PFRD and relevant evidence of record de novo. In their Objections, Subfile Defendants cite no
authority suggesting that they are entitled to a trial without first meeting their burden of
establishing that their historical use is greater than what Plaintiffs offered in their proposed
Consent Order. [Doc. 3436 at 5]. Moreover, the objection that Plaintiffs’ offer is less than what
Defendants contend is their standard calculation is not the standard for determining water rights
under New Mexico law that is well articulated in the PFRD. See id.; NMSA 1978, § 72-1-2.
Instead, Defendants simply restated their dissatisfaction with the amount of water offered by
Plaintiffs without offering any evidence of their historical use to support their position that they
are entitled to more than what was offered. The Court therefore overrules Defendants’ objections
to the PFRD.
As the Magistrate Judge noted, while Defendants’ failure to respond to Plaintiffs’ Motion for
Judgment on the Pleadings constitutes consent to grant the motion under D.N.M. LR-CIV 7.1(b),
the Court generally does not grant dispositive motions on procedural defaults alone, and will rule
on the motions on their merits. See Estate of Anderson v. Denny's Inc., 291 F.R.D. 622, 633
(D.N.M. 2013) (Browning, J.).
However, the Court agrees with the Magistrate Judge that Subfile Defendants’ failure to file
a response taken along with their failure to establish historical beneficial use in their subfile
answers is sufficient to conclude that Subfile Defendants have not met their burden of proving
that they are entitled to water rights above and beyond those stipulated to by Plaintiffs. Pecos

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Valley Artesian Conservancy Dist. v. Peters, 1948-NMSC-022, ¶ 11, ¶ 17, 52 N.M. 148, 193
P.2d 418.
In sum, based on a de novo review of the record as well as the PFRD, the Court concludes
that Subfile Defendants’ failure to establish historical beneficial use greater than Plaintiffs’ offer
entitle Plaintiffs to judgment as a matter of law.
WHEREFORE, IT IS ORDERED THAT:
1.

Subfile Defendants’ Objections to the Proposed Findings and Recommended
Disposition [Doc. 3437] are overruled;

2.

The Magistrate Judge’s Proposed Findings and Recommended Disposition (Doc.
3436] is ADOPTED;

3.

Defendants’ Joint Motions for Judgment on the Pleadings and Memorandum of
Points and Authorities in Support Thereof in Subfile Nos. ZRB-5-0056 and ZRB5-0057 [Doc. 3399; Doc. 3400] are GRANTED; and

4.

Final Judgment is entered in favor of Plaintiffs and against Defendants as to
Subfiles ZRB-5-0056 and ZRB-5-0057 adopting the water rights as described in
Doc. 3399 at pages 2-3 and Doc. 3400 at pages 2-3.

MARTHA VAZQUEZ
UNITED STATES DISTRICT JUDGE

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