(concurring in part and dissenting in part).
{44} I respectfully dissent. In a developing legal climate where we are coming to recognize that water is a necessity in limited supply, the courts should encourage definitive measurement in calculating water availability, should provide clear and consistent parameters for defining terms like “impairment,” and should take on their duties of de novo review with a critical eye and willingness to independently review the evidence before them.
{45} The Majority is correct in holding that the applications are not for new water appropriations, and that a new depletion at the move-to site is not per se impairment of that source of water. I concur fully with these holdings. Also, it is apparent in this case that Protestants concede other matters that limit the scope of the controversy significantly, which the Majority Opinion correctly addresses. Therefore, my disagreement is limited to discussing what I consider to be sufficient issues of material fact that should have precluded summary judgment and merited a full and proper de novo review of the case.
New Mexico Constitution Is Not a Water Gauge
{46} The salient question is whether “the State Engineer did consider all prior appropriations and did measure the water rights as required by New Mexico law” in coming to its decision. Templeton’s application is broader than the Majority suggests, simply because it holds that “the State Engineer can only grant permits to appropriate waters which are not already appropriated,” and that permits granted are “subject to the rights of all prior appropriators from the same source.” 65 N.M. at 69, 332 P.2d at 472. Templeton fully recognized the duty to appropriate water so as not to impair existing rights. Id. To do so then requires ascertaining the existence and effect of such existing rights.
{47} To accomplish this assessment requires a conceptual jump by the Majority. While the Constitution states that “[bjeneficial use shall be the basis, the measure and the limit of the right to the use of water,” New Mexico Constitution, art. XVI, § 3, beneficial use has little utility as a unit of measurement. In the Majority Opinion, we fail to answer the question of how to deal with rights that are adjudicated not to exist (albeit only for purposes of this case) for lack of beneficial use. To hold that “all prior appropriations” were considered and measured by the State Engineer in its process of granting Applicants’ permits, the Majority relies on the State Engineer’s determinations that not all existing water rights to the springs have been beneficially used, and therefore does not count them against the springs’ yield. These rights should have been counted. Impairment for this case is something that happens to the Protestants’ springs, not the broad water system as a whole. The calculus of determining whether total effect on the springs would be accounted for by their yield lessened by existing rights plus what will be drawn by Applicants’ wells cannot ignore water rights that have not been properly extinguished.
{48} So in this case, “although the [existing] declarations claimed a right to use water from the springs to irrigate a larger number of acres of land,” those rights, though not held by anyone to be abandoned, forfeited, or otherwise extinguished, were not counted because of Ward’s determination that water from the springs “had only been beneficially used to irrigate a much smaller number of acres of land” than the total number represented by all water rights that exist.
{49} The State Engineer in its response to Protestants’ motion for summary judgment explicitly said that his “determinations regarding impairment, or lack thereof, do not constitute adjudications.” Forfeiture of water rights may occur after four years of no beneficial use, but forfeiture of rights requires notice and action from the State Engineer. NMSA 1978, § 72-12-8(A) (2002). No such process has been undertaken to extinguish the prior rights in question for lack of beneficial use of the allocated water since 1863, 1907, 1935, or any other year. Absent such action, I urge that the declared rights should be taken into account when calculating demand.
{50} The Majority’s Opinion thus goes to great lengths in opposite directions, stressing that the uncalculated rights are not abandoned, forfeited, or adjudicated, while ratifying findings of the State Engineer that ignore such rights. When the Majority agrees with this conclusion, it must then appear to the reader to adjudicate those water rights by dicta. I disagree that these rights can be ignored in calculating demand for the springs’ water, and urge that the complete picture should be presented before impairment of a source can be evaluated accurately.
{51} The State Engineer cannot have it both ways. We hold that Protestants’ assertion of impairment was rebutted by the State Engineer’s showing regarding anticipated demand against yield of the springs. For the Majority Opinion to adopt findings that rights not concerned in this action do not exist for calculating demand versus yield in the spring, while explicitly stating that we do not regard them as forfeited or abandoned by legal definition, is contradictory. Otherwise, we appear to impermissibly expand the comment in McLean, 62 N.M. at 272, 308 P.2d at 988, that “[rjegulation ... is not confiscation,” to a holding that power to regulate implies a power to ignore existing rights. The Majority’s holding that the State Engineer’s findings were not an adjudication requires an explanation as to what the findings really are. Flatly, other rights exist that were considered by the State Engineer to be unimportant to the question of impairment of the springs. Such a determination is therefore at least an incomplete process, at most a credulous statement given how extensively we try to explain how little those rights matter. In this regard, the Majority Opinion fails to deliver its reason clearly enough and makes unwarranted assumptions based on unwarranted findings. Because the rights exist, and were not subtracted from the springs’ output, we do not know, for instance, if the Applicants’ well might still have had a negligible effect on the springs upstream. Taking all the unextinguished rights into account so as to assure a calculation based on fact, not assumption, would generate facts sufficient to ultimately survive or support summary judgment. That process was short-circuited in this case.
“Impairment” Is a Functional Definition, Not a Policy
{52} The Majority Opinion states that “Protestants are confusing depletion effects on the stream system as a whole with depletion effects at the particular site.” To the Majority, this precludes the issue of impairment of the springs from being sufficiently material as to preclude summary judgment. I believe that the significance flows in exactly the opposite direction' — namely that the stream system as a whole is not where impairment is the issue. I am not convinced that whether a system that is “hydrologically connected” in the entire MRGAA answers this case’s problem of small location-specific springs being impaired by groundwater pumping for a 106-unit residential development. Relinquishing surface rights in Valencia County might not have much to do with making sure there is enough water in Las Huertas Canyon to feed a spring. Under our case law, impairment of water rights is a factual question to be resolved on a case-by-case basis.
{53} The Majority cites a number of cases, such as Brown, 65 N.M. at 80, 332 P.2d at 479, and Mathers, 77 N.M. at 245, 421 P.2d at 776, to show that in some circumstances depletion does not equal impairment. The cases cited all stand for the proposition that a global approach and' evaluation (the very antithesis of a per se rule) is required to assess the impairment question, not a concentration on a single factor. The Majority Opinion does not go in this direction, taking instead a narrow approach rejected by other cases. For example, Brown discussed the lowering of a water table, but that was a groundwater-only case; well location was one factor the court said had to be considered along with all the characteristics of the aquifer. 65 N.M. at 80, 332 P.2d at 479. Brown did not involve a surface-for-groundwater transfer, but drilling a well under existing rights in a different location and applying for the move after the fact. Id. at 76, 332 P.2d at 476. That a “draw[]down of 3.9 feet in the water table” did not necessarily constitute impairment in that case is not a basis for inferring anything beyond what Brown actually said: “all characteristics of the particular aquifer must be considered along with well locations.” Id. at 80, 332 P.2d at 479 (motion for rehearing) (emphasis added). There were many variables in the Brown equation, which, if applied, might well lead to a better-developed factual basis in a de novo trial for a conclusion as to whether Protestants’ rights were actually impaired.
{54} Our prior eases demonstrate the depth of de novo review that I feel this case should have received below. As the Majority Opinion points out, Mathers dealt with a non-rechargeable basin. 77 N.M. at 245, 421 P.2d at 776. Mathers said that a declining water level is to be expected when one pumps from a finite basin. Id. at 246, 421 P.2d at 776. Mathers held that the lowering water level alone is insufficient for impairment of others’ rights while lamenting that “a definition of ‘impairment of existing rights’ is not only difficult, but an ‘attempt to define the same would lead to severe complications.’ ” Id. at 245, 421 P.2d at 776 (citation omitted). Stokes, on the other hand, dealt with the encroachment of salty water resulting from increased pumping at the move-to location. 101 N.M. at 201, 680 P.2d at 341. There, the impairment was the expected increase in salinity; though not minimal, the court held that there was no impairment. Id. Sleeper is similarly uninstructive — the statement the protestants made there, that they “need[ed] all the water they [could] get,” showed nothing. 107 N.M. at 499, 760 P.2d at 792. The issue was not what the protestants wanted, but whether the applicants were retiring adequate water rights (established with some particularity by the applicants) in the Rio Brazos basin. See id.
{55} Next, Langenegger allowed the owner of surface rights to drill a well upstream in an aquifer that gave water to his surface source so as to pre-capture the water that would eventually get into the Pecos River. 82 N.M. at 419, 483 P.2d at 300. In this case, could Applicants capture surface water before it recharged the source of their wells? Saying that Protestants can later sue if their springs are truly impaired does not obviate today’s responsibility of a full exposition of whether existing rights plus the new use would impair the springs. Our saying that “ ‘[n]o impairment’ does not necessarily mean ‘no change in conditions’ ” only underscores to me the possibility that if things were given an opportunity for real review, the possibility for change in the springs’ flow could be more honestly evaluated. See Stokes, 101 N.M. at 201, 680 P.2d at 341 (internal citation omitted). Overwhelmingly in these cases, a review of all factors involved supported the calculus of impairment. We owe no less breadth of inquiry to the case before us.
{56} Further, the Majority Opinion needs to say what impairment is in general, since we say the effect on the springs is not de minimis. Once we hold that more than a de minimis effect exists, we should encourage district courts, in de novo review, to undertake an evaluation of just what might be impairment of the prior rights. The effect on the springs is a material issue, and one that the Majority Opinion concedes may be more than de minimis. See Spencer v. Health Force, Inc., 2005-NMSC-002, ¶26, 137 N.M. 64, 107 P.3d 504 (“Genuine issues of material fact ... preclude summary judgment.”). The issue is the springs, not the stream system.
Is Trial De Novo Inconsistent with Summary Judgment Based on Administrative Findings?
{57} I am manifestly unsure in a case like this, with so many facts left undetermined, whether summary judgment was appropriate. This uncertainty is compounded by my examination of a district court’s de novo review of State Engineer decisions. Under the New Mexico Constitution, art. XVI, § 5, a proceeding appealing the State Engineer’s ruling “shall be de novo as cases originally docketed in the district court.” This provision established the district court’s power “to find facts[,] ... to form conclusions based upon those facts, and to enter enforceable judgments, orders and decrees supported by those facts and conclusions.” In re Application of Carlsbad Irrigation Dist., 87 N.M. 149, 151-52, 530 P.2d 943, 945-46 (1974). Our Supreme Court has said that in its de novo review, the district court considers the evidence presented to the State Engineer then it “also hears additional evidence, and is not called upon to determine whether the engineer or the board of water commissioners erred ... but must form its own conclusion and enter such judgment as the proof warrants and the law requires.” Id. at 150, 530 P.2d at 944 (internal quotation marks and citation omitted) (emphasis added). This has been called “pure de novo review.” Clayton v. Farmington City Council, 120 N.M. 448, 453-54, 902 P.2d 1051, 1056-57 (Ct.App.1995) (emphasis omitted). Carlsbad Irrigation District also recognized that de novo review may concern the same ultimate issues and facts as were detérmined by the State Engineer, and that the district court’s findings and those below may well be very similar. 87 N.M. at 152, 530 P.2d at 946. Such a similarity did not mean “that the district court did not consider the evidence anew.” Id. The district court “could and should have recited the substance of its judgment, rather than merely affirming the findings and decision of the Engineer,” but the district court’s failure to do so there did not necessarily deprive the protestants of a de novo review. Id. Unfortunately, in the instant case as opposed to Carlsbad Irrigation District, no new evidence was taken, and the case was resolved by summary judgment. We cannot know if the district court fulfilled the aspirations stated in Carlsbad Irrigation District.
{58} The district court in its de novo review should demonstrate that it has independently decided the case on the facts before it, not affirm by summary judgment the assumptions the State Engineer makes to justify its ultimate decision. This is particularly so where the decision is based on ignoring water rights that are not abandoned, ^forfeited, or adjudicated not to exist. Those rights should specifically be taken into account or there is a material question of fact as to impairment of the springs.