Lujan v. Acequia Mesa Del Medio

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1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

2 Opinion Number: _____________

3 Filing Date: March 5, 2024

4 No. A-1-CA-40325

5 CORLINDA H. LUJAN, IDA M. LUJAN,
6 and PABLO LUJAN,

7 Plaintiffs-Appellants,

8 v.

9 ACEQUIA MESA DEL MEDIO, a New Mexico
10 Community Ditch Association; TEODORO (TED)
11 CHACON, Individually and as Mayordomo of
12 Acequia Mesa del Medio; JOSE LEANDRO
13 MARTINEZ; MAGDALENA L. MARTINEZ;
14 RICHARD (RICKY) MARTINEZ, Individually and
15 as President of Acequia Mesa del Medio; STEVEN D.
16 SALAZAR, Individually and as Treasurer of Acequia
17 Mesa del Medio; LUIS TOBIAS (TOBY) VELASQUEZ,
18 Individually and as Secretary of Acequia Mesa del
19 Medio,

20 Defendants-Appellees,

21 and
 1 ELISE P. BENSEN; HELEN M. CHACON; HENRY
2 CHACON; CONNIE GARCIA; ESTELLA GARCIA;
3 RICHARD GARCIA; MARY ANN J. GONZALES-
4 LUJAN, Individually and as Personal Representative
5 of the Estate of Angie M. Romero, Deceased; LEVI
6 HERRERA; TOMASITA (TOMMIE) HERRERA;
7 ROSE LOVATO; PATSY LUCERO-MAESTAS; IDA
8 MADRID; RON R. MAESTAS; BELARMINO
9 MARTINEZ; GLORIA MARTINEZ; CONSUELO V.
10 MEDINA; FRANK MEDINA; ANNETTE MORFIN;
11 BENITO MORFIN; JOAQUIN MORFIN; LEONARD
12 MORFIN; CLEOTILDE SALAZAR; LEO SALAZAR;
13 MARIA ELENA SALAZAR; SANTANA SALAZAR;
14 ELAINE VALDEZ; LARRY MANUEL VALDEZ;
15 MARK W. VALDEZ; SANDRA VALDEZ; VALDEZ,
16 INC., a New Mexico corporation; GABRIEL A.
17 VELASQUEZ; RUDY BEN VELASQUEZ, JR.;
18 TOMAS A. VELASQUEZ, JR.; WAYNE D.
19 VELASQUEZ; and SAMUEL H. YOUNG,

20 Defendants.

21 APPEAL FROM THE DISTRICT COURT OF RIO ARRIBA COUNTY
22 Francis J. Mathew, District Court Judge

23 Montgomery & Andrews, P.A.
24 Randy S. Bartell
25 Santa Fe, NM

26 Ida M. Luján
27 Santa Fe, NM

28 for Appellants
 1 Humphrey & Odé, P.C.
2 Mary E. Humphrey
3 Connie Odé
4 El Prado, NM

5 for Appellees Acequia Mesa del Medio and Teodoro (Ted) Chacon, Richard
6 (Ricky) Martinez, Steven D. Salazar, and Luis Tobias (Toby) Velasquez

7 Peter B. Shoenfeld, P.A.
8 Peter B. Shoenfeld
9 Santa Fe, NM

10 for Appellees Jose Leandro Martinez and Magdalena Martinez

11 New Mexico Legal Aid
12 David Benavides
13 Matthew Baca
14 Santa Fe, NM

15 for Amicus Curiae New Mexico Acequia Association
 1 OPINION

2 IVES, Judge.

3 {1} This appeal pertains to a dispute about the rights that several landowners have

4 to irrigate their properties with water from the Acequia Mesa del Medio (the

5 Acequia) and the role of the governing body of the Acequia, Defendant-Appellee

6 Acequia Mesa del Medio (AMM), in the distribution of water to those landowners.

7 The district court ruled against Plaintiffs-Appellants Corlinda Lujan, Ida Lujan, and

8 Pablo Lujan and in favor of AMM and Defendants-Appellees Jose Leandro Martinez

9 and Magdalena Martinez. The court concluded that AMM had the authority to

10 distribute water to its members based on custom; the Lujans owned only a portion

11 of a decreed water right rather than the entire right; the Lujans failed to show that

12 they had a constitutionally protected property interest that supported their due

13 process claim; and the Lujans must pay AMM’s expert costs and attorney’s fees.

14 {2} The central issues in this appeal involve the relationship between two distinct

15 rights associated with acéquias: an irrigation water right, which is the right to use

16 water to irrigate, see Tri-State Generation & Transmission Ass’n, Inc. v. D’Antonio,

17 2012-NMSC-039, ¶ 41, 289 P.3d 1232, and a ditch right, which includes, as

18 primarily relevant here, the right to take water from the ditch for a certain period of

19 time. See Bounds v. Hamlett, 2011-NMCA-078, ¶ 4, 150 N.M. 389, 258 P.3d 1181

20 (stating that “the amount of time during a water cycle that an individual water user
 1 may take water from the ditch” is a ditch right). “New Mexico cases have long

2 recognized that ditch rights and water rights are distinct, are derived from different

3 sources, and are governed by different rules of law.” Olson v. H & B Properties,

4 Inc., 1994-NMSC-100, ¶ 10, 118 N.M. 495, 882 P.2d 536. We conclude that the

5 district court correctly distinguished between the two rights and correctly rejected

6 the Lujans’ arguments about the relationship between the two rights under the facts

7 of this case. We also conclude that the court did not err as to the Lujans’ due process

8 claim, expert costs, or attorney’s fees. We therefore affirm.

9 BACKGROUND

10 {3} This case is complex both legally and historically. Legally, it is situated within

11 a niche—acéquia and community ditch governance—of a specialized area—water

12 law. Historically, it involves families and neighbors whose dynamics began roiling

13 several decades ago. We summarize the relevant history here, discussing in turn land

14 ownership and water right ownership, ditch right ownership, and the current

15 proceeding. 1 When necessary for context, we include brief summaries of the relevant

16 law.

1
The procedural history is based on the findings made by the district court and
facts that are undisputed by the parties. See Seipert v. Johnson, 2003-NMCA-119,
¶ 26, 134 N.M. 394, 77 P.3d 298 (stating that unchallenged findings are binding on
appeal). To the extent that the Lujans seek to challenge specific findings in this
appeal, they waived these arguments, see Rule 12-318(A)(4) NMRA, by “fail[ing]
to properly set forth all the evidence bearing upon the findings.” Martinez v. Sw.
Landfills, Inc., 1993-NMCA-020, ¶ 18, 115 N.M. 181, 848 P.2d 1108.

2
 1 I. Land and Water Right Ownership

2 {4} It is important to trace land ownership because “[i]rrigation water rights are

3 appurtenant to the land, meaning that any conveyance of the land will carry the water

4 right with it unless the water right is expressly reserved by the grantor.” Walker v.

5 United States, 2007-NMSC-038, ¶ 23, 142 N.M. 45, 162 P.3d 882. Corlinda, the

6 Martinezes, and the heirs of Froilan Chacon 2 all own some land irrigated with water

7 from the Acequia that was originally part of Jose Onesimo Lujan, Senior’s (Jose

8 Sr.’s) 160-acre homestead. Jose Onesimo Lujan, Junior (Jose Jr.), received 114 acres

9 of the homestead in several conveyances in the 1940s and 50s, and after Jose Jr.

10 passed away in 1961, his surviving spouse, Corlinda, inherited those acres. The

11 Martinezes’ predecessor-in-interest, Fabian Lujan, received a separate 34 acres in

12 the 1950s and subsequently conveyed 28 of those acres to the Martinezes in 1964.

13 Froilan Chacon received 6 acres of the homestead in the 1940s.

14 {5} Of the 142 acres owned by the Martinezes and Corlinda, only 42.2 have an

15 appurtenant water right. The water rights on the Acequia vested after a district court

16 completed a special proceeding termed an “adjudication,” in which it determined all

17 water rights on the Rio Puerco de Chama, the body of water that supplies the

18 Acequia. See NMSA 1978, § 72-4-17 (1965) (outlining the adjudication process). In

Froilan’s name is spelled in various ways throughout the record; for clarity
2

and ease we use Froilan.

3
 1 the adjudication, which is known as the Chacon Adjudication, a district court issued

2 a decree—the Chacon Decree—in 1962.3 Chacon v. Chacon, Rio Arriba County

3 Cause No. 4922. The Lujans and the Martinezes were not parties to the Chacon

4 Adjudication, yet the Chacon court decreed an irrigation water right to “Jose

5 Onisimo Lujan and wife Corlinda Lujan.” 4 The Chacon Decree court identified the

6 specific tracts of land that had appurtenant rights to take water from the Acequia for

7 irrigation. An owner or prior owner’s name was used as a shorthand to label the

8 tracts of land identified on a map showing the acreage with appurtenant water rights.

9 The 42.2 acres of land at issue in this case to which the water rights were appurtenant

10 were identified by a legal description and correlating map.5

11 {6} The Chacon Decree further identified all water rights in the Decree as

12 “appurtenant to the lands . . . as set forth in . . . th[e] Decree,” and the Decree states

13 and such appurtenant water rights may be severed hereafter from said lands, only in

14 accord with” New Mexico law. The Chacon Decree did not adjudicate the land

15 ownership of the appurtenant acres; instead it assumed “for the purpose of th[e]

3
Because the Rio Puerco de Chama is a tributary of the Rio Chama, the
Chacon Adjudication was consolidated with the adjudication of water rights for the
Rio Chama, which is currently pending in federal court. See State ex rel. State
Engineer of New Mexico v. Aragon, United States District Court Cause No.
69cv07941 KWR/KK. Before that adjudication was removed to federal court, the
state court confirmed the Chacon Decree.
4
This likely refers to Jose Jr. because Corlinda was married to Jose Jr.
5
The Chacon court decreed a separate water right not at issue here that is
appurtenant to 7.6 acres of land, which it identified under Froilan’s name.

4
 1 Decree that each party claimant . . . is the owner of the respective tract or tracts of

2 land.” (Emphasis added.) The Chacon court did not decide who owned the tracts

3 identified on the map as having appurtenant water rights; land title questions were

4 left open, to be resolved based on state law and, if necessary, by state courts.

5 {7} Of the homestead’s 114 acres owned by Corlinda, approximately 20 are

6 among the acres identified by the Chacon court as having appurtenant water rights.

7 Neither the Martinezes nor their predecessor-in-interest were claimants in the

8 Chacon court proceeding, so they are not identified by name, but the Martinezes

9 currently own some acres identified by the Chacon court as having appurtenant

10 water rights to irrigate from the Acequia.

11 II. Ditch Right Ownership and the Derecho System

12 {8} It is undisputed that Corlinda and Jose Leandro have ditch rights in the

13 Acequia. As discussed previously, a ditch right includes, in relevant part, the right

14 to take water from the ditch for a certain period of time. The dispute here pertains to

15 how AMM distributes water to the holders of ditch rights—how it assigns a

16 particular time period for taking water from the Acequia to each member of AMM.

17 {9} By statute and under a 1968 stipulation in the Chacon Adjudication, AMM,

18 as the community acéquia association for this Acequia, see NMSA 1978, § 73-2-28

19 (2001), has the discretion, with certain limitations discussed below, to adopt

20 “customs, rules and regulations” regarding the distribution of water to those entitled

5
 1 to water from the Acequia. See NMSA 1978, § 72-9-2 (1907). AMM adopted a

2 distribution system that it terms the “derecho system,” under which AMM

3 determines the date and amount of time that each holder of a ditch right—each

4 parciante—may take water from the Acequia during each irrigation cycle of roughly

5 three weeks. These determinations are set forth in an irrigation schedule.

6 {10} Currently, Corlinda and Jose Leandro may take water for twenty-four and

7 eighteen hours per cycle, respectively. Every parciante’s irrigation time on the

8 Acequia derives from one of the original parciante’s derechos. For example, the

9 derechos for Corlinda, Jose Leandro, and the heirs of Froilan Chacon each derive

10 from and are fractions of Jose Sr.’s derecho. Jose Sr. could take water from the

11 Acequia for forty-eight hours per cycle; when added together, the irrigation time of

12 Corlinda, Jose Leandro, and the heirs of Froilan Chacon total forty-eight hours. 6

13 {11} Corlinda’s irrigation time and Jose Leandro’s irrigation time have varied over

14 the years. From 1984 to 2012, Corlinda received forty-two hours of irrigation time,

15 and Jose Leandro was not listed as a parciante or on the irrigation schedule. In 2012,

16 AMM’s parciantes voted to add Jose Leandro as a parciante, after which AMM

17 issued a new irrigation schedule that reduced Corlinda’s forty-two hours of irrigation

6
The dispute here involves forty-two hours of irrigation time out of the total
forty-eight hours under Jose Sr.’s original derecho. The remaining six hours of
irrigation time for the heirs of Froilan Chacon is not in dispute.

6
 1 time to twenty-four hours per cycle and granted the remaining eighteen hours to Jose

2 Leandro.

3 III. The Current Proceeding

4 {12} After AMM reduced Corlinda’s irrigation time, she sued AMM and the

5 Martinezes. Three of her claims are pertinent to this appeal: (1) a claim for

6 declaratory relief that AMM must distribute water in accordance with the Chacon

7 Decree rather than the derecho system and an injunction to the same effect; (2) a

8 claim for declaratory relief that she had a decreed water right for 42.2 acres and the

9 Martinezes were not owners of any of that water right; and (3) a Fourteenth

10 Amendment procedural due process claim under 42 U.S.C. § 1983 premised on the

11 theory that the change in irrigation time deprived her of her water right without

12 adequate notice and an opportunity to be heard.

13 {13} The district court granted a defense motion, pursuant to Rule 1-012(B)(6)

14 NMRA, to dismiss Corlinda’s claims for declaratory and injunctive relief relating to

15 the derecho system. At the heart of the district court’s ruling—and this appeal—is

16 the district court’s conclusion that New Mexico courts lack the authority to readjust

17 ditch rights so that those rights are “in proportion to the water rights of the

18 landowners using the ditch or in proportion to the number of acres irrigated by each

19 landowner.”

7
 1 {14} Next, in ruling on a summary judgment motion brought by AMM, the district

2 court partially dismissed Corlinda’s claim that she owned all of the 42.2 acre decreed

3 water right. It reasoned that she only had an interest in the water right to the extent

4 that she owned acres to which the Chacon Decree ascribed an appurtenant water

5 right, which totaled “approximately 20 acres of irrigated land.” In ruling on a

6 summary judgment motion brought by the Martinezes, the district court also

7 dismissed Corlinda’s claim that the Martinezes did not own any of the 42.2-acre

8 decreed water right. The court reasoned that “water rights are appurtenant to land;

9 they are not owned separate from the land”; that the Martinezes made a prima facie

10 showing that they owned land to which portions of the 42.2 acre decreed water right

11 were appurtenant; and that the Lujans failed to rebut the Martinezes’ prima facie

12 showing.

13 {15} Although Corlinda’s due process claim survived a summary judgment motion,

14 it failed at trial. She argued to the district court that AMM’s change in her irrigation

15 time from forty-two to twenty-four hours deprived her of her property interest in her

16 water right. The court determined that Corlinda did not have a legitimate claim of

17 entitlement to forty-two hours of irrigation time because both she and Jose Leandro

18 were entitled to part of the same derecho.

19 {16} After trial, the court granted costs to AMM for its expert witness, Mustafa D.

20 Chudnoff, concluding that his work was reasonably necessary for the litigation. It

8
 1 further granted attorney’s fees to AMM, pursuant to 42 U.S.C. § 1988, for work done

2 in defending against the Lujans’ due process claim during the period of time between

3 the denial of AMM’s summary judgment motion and the entry of judgment against

4 the Lujans on that claim because the court concluded that the Lujans frivolously

5 pursued the claim during that time period.7 The Lujans appeal.

6 DISCUSSION

7 {17} On appeal, many of the Lujans’ arguments rely on legal theories rejected by

8 the district court. Those theories involve the confusion of one of their ditch rights—

9 specifically, their right to a particular flow of water—with their water rights—their

10 right, under the Chacon Decree, to irrigate specific acres of land. As we understand

11 the Lujans’ briefs, they present five arguments: (1) that AMM’s derecho system,

12 which manages ditch rights, is incompatible with the determination of water rights

13 in the Chacon Decree and thus AMM’s water distribution system was superseded

14 by or must conform to the identification of water rights by acre set forth in the

15 Decree; (2) that the district court lacked subject matter jurisdiction when it

16 determined that Corlinda was entitled to approximately 20 acres of the decreed water

17 right and it effectively adjudicated a water right to the Martinezes; (3) that when

18 AMM changed Corlinda’s irrigation time, it deprived her of her water right without

7
It also awarded attorney’s fees because of the Lujans’ pursuit of a retaliation
claim—a claim which, apart from its relationship to the grant of attorney’s fees, is
not at issue in this appeal.

9
 1 due process; (4) that the award of expert witness fees is not supported by Rule 1-

2 054(D) NMRA or the record; and (5) that the award of attorney’s fees is not justified.

3 We address each argument in turn, explaining why we conclude that none warrant

4 reversal.

5 I. The Determination of Water Rights in the Chacon Decree Is Not
6 Incompatible With and Did Not Replace the Derecho System

7 {18} The Lujans argue that water rights, once determined based on the doctrine of

8 prior appropriation, dictate the amount of water each landowner is entitled to have

9 distributed from a ditch. Based on this legal theory, the Lujans contend that the

10 Chacon Decree, which determined irrigation water rights along the Acequia,

11 “replaced” the derecho system, the system by which AMM distributes water to those

12 who hold both water and ditch rights. We reject the Lujans’ legal theory because it

13 is inconsistent with New Mexico precedent and statute, which recognize that water

14 rights and ditch rights are different, derive from different sources, and are governed

15 by different law. See, e.g., Olson, 1994-NMSC-100, ¶ 10. The district court correctly

16 recognized this distinction and rejected the Lujans’ arguments that the Chacon

17 Decree and the AMM’s implementation of the derecho system here are incompatible

18 and that the Chacon Decree dictates distribution of water from the Acequia.

19 {19} For the reasons that follow, we conclude that the prior appropriation doctrine,

20 which governs irrigation water rights, can operate in tandem with the derecho system

21 used by AMM. We also conclude that the way in which irrigation water rights were

10
 1 adjudicated in the Chacon Decree does not supersede or conflict with the way AMM

2 distributes irrigation time in this case because the Decree did not determine ditch

3 rights and the Decree recognized an acéquia association’s authority to distribute

4 based on its own customs, rules, and regulations. In explaining the reasons for our

5 conclusions, we first discuss water rights and ditch rights separately. Second, we

6 discuss two precedents pertaining to the dynamic between the two rights: Holmberg

7 v. Bradford, 1952-NMSC-051, 56 N.M. 401, 244 P.2d 785, and Olson, 1994-NMSC-

8 100. And, third, we discuss Section 72-9-2, which recognizes—and describes the

9 scope of—the authority that acéquia and community ditch associations have to

10 distribute water in accordance with local and community customs, rules, and

11 regulations.

12 {20} In New Mexico, water rights are determined based on the prior appropriation

13 doctrine, see N.M. Const. art. XVI, § 2, under which “water rights are both

14 established and exercised by beneficial use, which forms ‘the basis, the measure and

15 the limit of the right to use of the water.’” Walker, 2007-NMSC-038, ¶ 22 (quoting

16 N.M. Const. art. XVI, § 3) (emphasis added); see also NMSA 1978, § 72-1-2 (1907)

17 (“Beneficial use shall be the basis, the measure and the limit of the right to the use

18 of water.”). In other words, a water right is the right to use water, and each right

19 holder is limited to a specific use, namely the beneficial use that established the right.

20 Walker, 2007-NMSC-038, ¶ 22. If water is appropriated and used for irrigation—

11
 1 creating an irrigation water right, as is the case here—that right is appurtenant to

2 specified land, and “any conveyance of the land will carry the water right with it

3 unless the water right is expressly reserved by the grantor.” Id. ¶ 23; accord § 72-

4 1-2.

5 {21} In contrast, “ditch rights are derived from ownership of the ditch and an

6 easement therein.” Olson, 1994-NMSC-100, ¶ 10. “The physical structure of the

7 ditch itself is real property, owned by the community who built it as tenants in

8 common by virtue of their joint investment of capital and labor.” Id. An interest in

9 the physical structure of the ditch passes to successors in title to the lands of the

10 original ditch community. Id. Unlike an ownership interest in the ditch itself, the

11 interest in the flow of water through the ditch is an easement. Id. ¶ 11. The easement

12 is in the water flowing from the ditch to the water user’s land for a period of time in

13 a water cycle. See id. ¶ 14 (stating the extent of the easement in the flow of water on

14 the ditch in question was determined by an agreement that set each member’s

15 irrigation time); Bounds, 2011-NMCA-078, ¶ 4 (stating that the “amount of time

16 during a water cycle that an individual water user may take water from the ditch” is

17 a ditch right). In addition to having an interest in the physical ditch and an interest

18 in the flow of water, the holder of a ditch right has an “interest in being a water user.”

19 Wilson v. Denver, 1998-NMSC-016, ¶ 34, 125 N.M. 308, 961 P.2d 153. Critically,

20 none of these three interests amount to a water right. Id. ¶ 22. Instead, ditch rights

12
 1 are rights specific to acéquias and other community ditches. Olson, 1994-NMSC-

2 100, ¶¶ 10-11.

3 {22} Two precedents from our Supreme Court—Holmberg, 1952-NMSC-051, and

4 Olson, 1994-NMSC-100—illustrate how the two rights differ in general and identify

5 one set of circumstances in which the two rights relate to each other. The district

6 court relied on Holmberg, and on appeal the Lujans rely on Olson. We conclude that

7 the district court correctly relied on Holmberg and that the Lujans’ arguments based

8 on Olson do not warrant reversal here.

9 {23} In Holmberg, our Supreme Court rejected an argument very similar to the

10 argument made by the Lujans here. The plaintiffs in Holmberg asked the Court to

11 “readjust the shares in interest” in a community ditch “in proportion to the water

12 rights of the land owners using said ditch, or in proportion to the number of acres

13 irrigated by each land owner using said ditch.” 1952-NMSC-051, ¶ 14. The Court

14 concluded that the plaintiffs’ proportionality theory was “not a valid contention of

15 law.” Id. This conclusion was based on the important distinctions between water

16 rights and ditch rights. Id. ¶¶ 8-13. The Court therefore declined to adjust ditch rights

17 to mirror water rights, id. ¶ 14, which is what the district court did in the case before

18 us. We conclude that the district court correctly relied on Holmberg.

19 {24} And we disagree with the Lujans’ contention that Olson supports reversal. The

20 Olson Court recognized one set of circumstances—not present here—in which

13
 1 irrigation water rights and ditch rights are related. Specifically, the Court concluded

2 that the owner of a ditch right may lose the right to the flow of water through the

3 ditch to a specific tract of land if it is determined that the owner has no irrigation

4 water right for that tract and if the purpose of the ditch easement is to distribute water

5 for irrigation purposes. 1994-NMSC-100, ¶¶ 10-16. The members of the ditch in

6 Olson had entered into a “[d]eclaration” which “allocate[d] usage time for the ditch”

7 by specifying “the number of days of ditch usage allotted to each” tract. Id. ¶ 3. But,

8 in a stream adjudication, a district court determined that the owner of a specific tract

9 did not have an irrigation water right for that tract, and based on that determination,

10 the district court in Olson eliminated from the irrigation schedule the days associated

11 with that tract. Id. ¶¶ 5-8. Our Supreme Court reaffirmed the longstanding distinction

12 between water rights and ditch rights but concluded that the distinction was not

13 dispositive under the specific facts of the case before it. Id. ¶¶ 9-16. The Court

14 explained that the “[d]eclaration” governing the irrigation schedule “creat[ed] an

15 express easement” in the flow of water. Id. ¶ 11. The Court reasoned that the

16 easement was, like any other easement, subject to the cessation of purpose doctrine:

17 “An easement that is created to serve a particular purpose terminates when the

18 underlying purpose for the easement no longer exists.” Id. ¶ 13. Because the purpose

19 of the easement in the case before it “was to transport water to particular tracts of

20 land for irrigation” and because an irrigation water right no longer existed for the

14
 1 tract in question, the purpose of the easement for that tract had ceased to exist. Id.

2 ¶ 15. Therefore, the easement for that tract “was extinguished,” and the district court

3 did not err by eliminating from the irrigation schedule the days associated with that

4 tract. Id. ¶¶ 15-16.

5 {25} Olson is unhelpful to the Lujans because they have not provided any basis for

6 applying the cessation of purpose doctrine. Here, unlike in Olson, the Lujans have

7 not established that the purpose of the easement in the flow of water no longer exists.

8 Specifically, the Lujans have not argued that any other party has lost an irrigation

9 water right associated with any specific tract of land irrigated by the Acequia.

10 Another significant distinction is that here, unlike in Olson, no contract or other

11 binding document fixes specific irrigation times on the Acequia. Instead, the

12 irrigation schedule for distributing water on the Acequia derives from the derecho

13 system, a system that AMM adopted based on local traditions and customs.

14 {26} The Lujans have not established that AMM lacked the authority to adopt such

15 a system to manage the distribution of water from the Acequia. As Amicus New

16 Mexico Acequia Association correctly points out, 8 under Section 72-9-2,

17 community ditch and acéquia associations like AMM may use “local or community

18 customs, rules and regulations” to “govern the distribution of water . . . to the

19 persons entitled to water.” By granting such authority to each community ditch and

8
We thank Amicus New Mexico Acequia Association for its helpful brief.

15
 1 acéquia association, our Legislature “recognized that each ditch system is unique

2 and has individualized needs.” Wilson, 1998-NMSC-016, ¶ 43.

3 {27} Consistent with Section 72-9-2, the Chacon Decree recognizes—rather than

4 negates—the authority of each community ditch and acéquia association to distribute

5 water to the holders of water rights in accordance with local customs and traditions.

6 The Decree does so explicitly; it includes a stipulation “that nothing contained in the

7 [Chacon] Decree shall be construed to impair or interfere with the authority of the

8 commissioners and mayordomo to administer and apportion, within their various

9 community ditch associations, waters covered by the [Chacon] Decree in accordance

10 with the customs, traditions and by-laws of the said community ditch associations.”

11 The Lujans argue, without citing supporting authority, that this stipulation “is a

12 nullity” because it does not specifically refer to derechos or another means of water

13 distribution. But the Lujans do not argue that the derecho system deviates from

14 AMM’s “customs, traditions [or] by-laws,” and we therefore reject the Lujans’

15 position.

16 {28} Importantly, the Lujans have not argued that any of the limitations found in

17 the text of Section 72-9-2 apply here. Section 72-9-2 imposes procedural and

18 substantive constraints on the authority of acéquia and community ditch associations

19 with respect to the distribution of water. Procedurally, the statute requires that rules

20 and regulations be adopted by a “majority of the users,” and the statute allows

16
 1 modifications of customs, rules and regulations only if “so desired by the persons

2 interested and using said custom or customs.” Id. Substantively, the statute provides

3 that rules and regulations may be used to govern distribution of water only if they

4 “have for their object the economical use of water” and only if they are “not

5 detrimental to the public welfare.” Id. The Lujans do not argue that AMM violated

6 the statute’s procedural limitations or that the derecho system violates the statute’s

7 substantive limitations.

8 {29} The only limitation relied on by the Lujans is one that lacks support in the text

9 of Section 72-9-2. The Lujans contend that Section 72-9-2 only applies to

10 unadjudicated irrigation water right claims and that, once irrigation water rights are

11 adjudicated, acéquia and community ditch associations lose their authority with

12 respect to how water is distributed. We are not persuaded. As we have explained,

13 our Legislature explicitly imposed limitations on the authority of acéquia and

14 community ditch associations to distribute water, but the text of the statute includes

15 no language suggesting that their authority only extends to unadjudicated water

16 rights. Neither the word “unadjudicated,” the phrase “before an adjudication,” nor

17 any similar language that might support the Lujans’ proposed limitation appears

18 anywhere in Section 72-9-2, and we decline to add language to the statute. See State

19 v. Greenwood, 2012-NMCA-017, ¶ 38, 271 P.3d 753 (“The Legislature knows how

20 to include language in a statute if it so desires.” (citation omitted) (text only)); Elite

17
 1 Well Serv., LLC v. N.M. Tax’n & Revenue Dep’t, 2023-NMCA-041, ¶ 7, 531 P.3d

2 635 (“We will not read into a statute language which is not there.” (citation omitted)

3 (text only)).

4 {30} Instead, the Lujans rely on an adjacent section, NMSA 1978, § 72-9-1 (1941),9

5 but they have not persuaded us that this statute applies here. Critically, unlike

6 Section 72-9-2, Section 72-9-1 does not say anything about the authority of acéquia

7 and community ditch associations to govern the distribution of water, and Section

8 72-9-1 does not refer to Section 72-9-2. The Lujans have not provided any

9 persuasive argument that the authority to distribute water that is explicitly granted—

10 and explicitly limited—by Section 72-9-2 is also limited in some different fashion

11 by Section 72-9-1. The Lujans focus on our Legislature’s inclusion of the word

12 “adjudication” in the final clause of Section 72-9-1, but they forge no logical or

13 conceptual link between the subject matter governed by that clause and the subject

14 matter governed by Section 72-9-2. We reject the Lujans’ argument that, under

15 Section 72-9-1, an acéquia or community ditch association may govern the

9
Section 72-9-1 states, “Nothing contained in this article shall be construed to
impair existing vested rights or the rights and priority of any person, firm,
corporation or association, who may have commenced the construction of reservoirs,
canals, pipelines or other works, or who have filed affidavits, applications or notices
thereof for the purpose of appropriating for beneficial use, any waters as defined in
[NMSA 1978, 72-1-1 [1941] in accordance with the laws of the territory of New
Mexico, prior to March 19, 1907; provided, however, that all such reservoirs, canals,
pipelines or other works and the rights of the owners thereof shall be subject to
regulation, adjudication and forfeiture for nonuse as provided in this article.”

18
 1 distribution of water in accordance with local and community customs, rules, and

2 regulations pursuant to Section 72-9-2 only if the irrigation water rights for the water

3 in its acéquia or community ditch have not been adjudicated. Accordingly, we

4 conclude that the adjudication of water rights in the Chacon Decree did not bar

5 AMM from using its derecho system to distribute water in a manner consistent with

6 Section 72-9-2.

7 {31} The Lujans also contend that the derecho system is incompatible with the

8 doctrine of prior appropriation. However, they do not describe specific conflicts

9 between the two and do not cite applicable authority. Instead, they rely on

10 inapplicable New Mexico precedent in which our Supreme Court refused to

11 recognize various water rights and doctrines because they could not be reconciled

12 with the doctrine of prior appropriation. See Harkey v. Smith, 1926-NMSC-011,

13 ¶ 10, 31 N.M. 521, 247 P. 550 (holding new appropriations of water are regulated

14 by permits or decrees, rather than the arid region doctrine); State ex rel. Martinez v.

15 City of Las Vegas, 2004-NMSC-009, ¶ 36, 135 N.M. 375, 89 P.3d 47 (holding that

16 the pueblo water rights doctrine is inconsistent with prior appropriation); Yeo v.

17 Tweedy, 1929-NMSC-033, ¶ 21, 34 N.M. 611, 286 P. 970 (holding that the rule of

18 correlative rights is incompatible with prior appropriation); Walker, 2007-NMSC-

19 038, ¶¶ 46-47 (holding that custom does not define the scope of a water right). We

20 are unpersuaded because these precedents involve water rights rather than ditch

19
 1 rights, which are managed under the derecho system and which are “governed by

2 different rules of law” than water rights. See, e.g., Olson, 1994-NMSC-100, ¶¶ 10-

3 11, 14.

4 {32} For these reasons, the Lujans have not established that the adjudication of

5 irrigation water rights in the Chacon Decree supersedes or conflicts with AMM’s

6 use of the derecho system to distribute water from the Acequia to the landowners

7 involved in this litigation. Nor have the Lujans established that the derecho system

8 is incompatible with the prior appropriation doctrine.

9 II. The District Court Retained Subject Matter Jurisdiction Because It Did
10 Not Adjudicate or Readjudicate Water Rights
11 {33} The Lujans argue that the district court overstepped its subject matter

12 jurisdiction by entering seven orders that readjudicated water rights in the Chacon

13 Decree rather than enforcing the rights that the Decree adjudicated. However,

14 because some of the Lujans’ arguments are improperly and inadequately briefed,10

10
For several of the orders, the Lujans attempt to incorporate by reference
arguments that they made to the district court, rather than making those arguments
in their appellate briefs—an improper practice which we address in more detail in
the last section of this opinion. The Lujans’ arguments in this section suffer from
other fatal flaws. For example, the Lujans make no argument to support their
assertion that the court lacked jurisdiction regarding two orders: one dismissing
several claims under Rule 1-012(B)(6) and the findings of fact, conclusions of law,
and order. See Elane Photography, LLC v. Willock, 2013-NMSC-040, ¶ 70, 309 P.3d
53 (“We will not . . . guess at what a party’s arguments might be.” (alteration, internal
quotation marks, and citation omitted)). Further, the Lujans invoke four discrete
doctrines (fundamental error, collateral attack, res judicata, and priority jurisdiction)
without showing how the necessary elements of each doctrine are met. Because the

20
 1 we will only review certain arguments attacking two of those orders: an order

2 granting AMM’s motion for partial summary judgment on Corlinda’s interest in the

3 42.2-acre decreed water right and an order granting the Martinezes’ summary

4 judgment motion dismissing Corlinda’s request for declaratory relief that the

5 Martinezes have no interest in the 42.2-acre decreed water right.

6 {34} The question of subject matter jurisdiction was presented to this Court in a

7 previous appeal in this litigation. See Lujan v. Acequia Mesa del Medio, 2019-

8 NMCA-017, 436 P.3d 734. In that appeal, AMM and the Martinezes argued that the

9 district court lacked jurisdiction because it would have to readjudicate that which

10 was adjudicated by the Chacon court. Id. ¶ 15. The Lujans argued that their claims

11 merely required this Court to interpret and enforce the Decree. Id. This Court agreed

12 with the Lujans, concluding that the district court has “jurisdiction over claims

13 related to the enforcement of the decree—as opposed to claims seeking an

14 adjudication of the water rights to be decreed,” and this Court remanded the case for

15 further proceedings. Id. ¶¶ 14, 23. In the present appeal, the Lujans argue that the

16 district court lacked subject matter jurisdiction when it “amend[ed]” the Chacon

Lujans have not carried their burden of establishing that the district court exceeded
its jurisdiction with respect to these orders, we presume that the district court did not
err. See Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111
N.M. 6, 800 P.2d 1063.

21
 1 Decree and “in effect[] adjudicate[ed] a ‘water right’ to” the Martinezes. We

2 disagree.

3 {35} “We review claims related to subject matter jurisdiction de novo.” Allred v.

4 N.M. Dep’t of Trans., 2017-NMCA-019, ¶ 20, 388 P.3d 998. “In determining

5 whether a court has subject matter jurisdiction, we ask whether the matter before the

6 court falls within the general scope of authority conferred upon such court by the

7 constitution or statute.” State ex rel. Foy v. Austin Cap. Mgmt., Ltd., 2015-NMSC-

8 025, ¶ 7, 355 P.3d 1 (citation omitted) (text only). By statute, adjudication courts

9 have “exclusive jurisdiction to hear and determine all questions necessary for the

10 adjudication of all water rights within the stream system involved.” Section 72-4-

11 17. Once an adjudication ends with a decree, district courts, as general jurisdiction

12 courts, have “jurisdiction over claims related to the enforcement of the decree—as

13 opposed to claims seeking an adjudication of the water rights to be decreed.” Lujan,

14 2019-NMCA-017, ¶ 14.

15 {36} As we understand it, the district court here limited Corlinda’s interest in the

16 42.2-acre water right to approximately 20 acres by determining the acres of the land

17 she owns that correspond to the acres identified in the Chacon Decree as having an

18 appurtenant water right. It further dismissed the claims for declaratory relief against

19 the Martinezes because they made a prima facie showing that they owned some of

20 the acres to which the water right is appurtenant, and the Lujans failed to rebut that

22
 1 showing. Therefore, the resolution of the issue before us hinges on whether the

2 district court in the present litigation readjudicated a water right that had been

3 adjudicated in the Chacon Decree when the district court in the present litigation

4 made determinations about the ownership of some of the land that the Chacon

5 Decree identified as having an appurtenant water right.

6 {37} We conclude that the district court did not overstep its jurisdiction for two

7 reasons. First and foremost, we do not read the Chacon Decree as determining land

8 ownership. Instead, the Chacon court assumed “for the purpose of th[e] Decree that

9 each party claimant or substituted party claimant is the owner of the respective tract

10 or tracts of land.” (Emphasis added.) Second, we do not read the district court’s

11 orders as adjudicating a water right to the Martinezes; the court simply dismissed

12 the claim for declaratory relief against the Martinezes because the Lujans failed to

13 carry their burden in opposing summary judgment. For these reasons, we do not

14 believe the district court here adjudicated or readjudicated water rights by

15 determining the ownership of some of the land to which the right is appurtenant. We

16 therefore conclude that the district court did not overstep its jurisdiction in enforcing

17 the Decree.

18 III. The Lujans Have Not Established That They Have a Property Interest
19 Protected by Due Process

20 {38} The Lujans brought a due process claim in which they argued that AMM’s

21 modification of the irrigation schedule, which decreased Corlinda’s time from forty-

23
 1 two to twenty-four hours, deprived her of her water right without notice and an

2 opportunity to be heard. After trial, the district court denied Corlinda’s claim because

3 she did not establish that she was entitled to forty-two hours of irrigation time. 11 On

4 appeal, the Lujans do not establish that Corlinda had a constitutionally protected

5 property right. Because they have not carried their burden of demonstrating error,

6 we presume the district court is correct, see Farmers, Inc. v. Dal Mach. &

7 Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6, 800 P.2d 1063, and we

8 therefore affirm.

9 {39} “We review de novo whether due process has been denied.” Rayellen Res.,

10 Inc. v. N.M. Cultural Properties Rev. Comm., 2014-NMSC-006, ¶ 18, 319 P.3d 639.

11 To succeed on a procedural due process claim, a plaintiff must show that (1) they

12 were “depriv[ed] of a legitimate liberty or property interest” and (2) that they were

13 “not afforded adequate procedural protections.” Barreras v. N.M. Corr. Dep’t, 1992-

14 NMSC-059, ¶ 18, 114 N.M. 366, 838 P.2d 983.

15 {40} The Lujans fail to meet the first requirement. “‘Property interests are created

16 and their dimensions are defined by existing rules or understandings that stem from

17 an independent source such as state law.’” Tri-State, 2012-NMSC-039, ¶ 39

18 (omission omitted) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). “The

11
The district court also ruled that Corlinda waived her procedural due process
rights. However, because we affirm its ruling that Corlinda did not establish that she
had a protected property right, we do not reach the merits of the waiver ruling.

24
 1 definition of property centers on the concept of entitlement.” Id. (citation omitted)

2 (text only). The district court concluded the Lujans did not prove Corlinda was

3 entitled to forty-two hours of irrigation time. As we have explained, her irrigation

4 time relates to her ditch right via her easement in the flow of water; her ditch right,

5 in turn, is distinct from her water right. The Lujans present no argument that Corlinda

6 is entitled to or guaranteed forty-two hours of irrigation time based on her ditch right,

7 see Tri-State, 2012-NMSC-039, ¶ 39; Roth, 408 U.S. at 578 (denying procedural due

8 process protections when the property right was not guaranteed to the plaintiff by

9 rule, statute, or contract), and they therefore have not carried their burden of

10 establishing that the district court erred. See Farmers, Inc., 1990-NMSC-100, ¶ 8.

11 IV. The District Court Acted Within Its Discretion to Grant Expert Fees

12 {41} The Lujans appeal the district court’s award of costs for fees paid by AMM to

13 its expert witness, Mustafa D. Chudnoff. The Lujans argue that: (1) it was improper

14 to award expert fees when Mr. Chudnoff did not testify in person or by deposition;

15 and (2) the court lacked support in the record when it determined that he was

16 reasonably necessary for the litigation. We are not persuaded by either argument.

17 {42} Rule 1-054(D) governs the district court’s award of costs. Andrews v. U.S.

18 Steel Corp., 2011-NMCA-032, ¶ 32, 149 N.M. 461, 250 P.3d 887. The rule allows

19 recovery for “expert witness fees for services as provided by [NMSA 1978, Section

20 38-6-4(B) (1983)] or if the court determines that the expert witness was reasonably

25
 1 necessary to the litigation.” Rule 1-054(D)(2)(g). Section 38-6-4(B) allows fees for

2 an expert “who testifies in the cause in person or by deposition.”

3 {43} A different standard of review governs each of the Lujans’ arguments. We

4 review their first argument de novo because it presents a question of law about

5 “[w]hether the district court properly interprets Rule 1-054(D) in making its award.”

6 Andrews, 2011-NMCA-032, ¶ 32. We review their second argument for an abuse of

7 discretion because they challenge “the necessary and reasonable costs awarded by

8 the district court.” Id. “An abuse of discretion occurs when a ruling is clearly

9 contrary to the logical conclusions demanded by the facts and circumstances of the

10 case.” Benz v. Town Ctr. Land, LLC, 2013-NMCA-111, ¶ 11, 314 P.3d 688 (internal

11 quotation marks and citation omitted).

12 {44} As to their first argument, the Lujans rely solely on Fernandez v. Española

13 Pub. Sch. Dist., 2004-NMCA-068, ¶ 11, 135 N.M. 677, 92 P.3d 689, aff’d 2005-

14 NMSC-026, 138 N.M. 283, 119 P.3d 163, for its holding that a district court can

15 only grant expert fees if the expert testified in person or by deposition. But the Lujans

16 ignore that our Supreme Court amended the rule after Fernandez, and that the rule

17 now expressly allows a district court to grant expert fees “if the court determines

18 that the expert witness was reasonably necessary to the litigation.” Rule 1-

19 054(D)(2)(g); see Andrews, 2011-NMCA-032, ¶ 33 (recognizing the 2008

20 amendment).

26
 1 {45} Turning to the Lujans’ second argument, we reject their contention that the

2 district court’s finding that Mr. Chudnoff was reasonably necessary for the litigation

3 is “completely unsupported by the record.” 12 AMM used an affidavit and exhibits

4 prepared by Mr. Chudnoff in two of its summary judgment motions (both of which

5 the court granted) and included his work in one of its trial exhibits. Further, the

6 Lujans deposed Mr. Chudnoff and used parts of his deposition in their motion to

7 reconsider various orders granting summary judgment. In light of this, we see no

8 basis for concluding that the district court abused its discretion when it concluded

9 that Mr. Chudnoff’s work was necessary and awarded costs on that basis.

10 V. The Lujans Have Not Shown That the District Court Erred by Awarding
11 Attorney’s Fees
12 {46} The district court granted AMM attorney’s fees under 42 U.S.C. § 1988

13 because the Lujans continued to pursue their due process and retaliation claims after

14 the court granted two summary judgment motions (those discussed above in the

15 section on subject matter jurisdiction) that dealt with the underlying property interest

16 for the due process and retaliation claims. As we understand it, on appeal, the Lujans

17 make three discrete arguments. First, the two summary judgment orders regarding

The Lujans also imply that the district court was required to make explicit
12

findings in its orders that it relied on Mr. Chudnoff’s expertise in the litigation.
However, the Lujans cite no supporting authority, see In re Adoption of Doe, 1984-
NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329, and we see nothing in the rule itself
that imposes such a requirement.

27
 1 their property interest underlying their due process claim were interlocutory and they

2 could not reasonably know their surviving claims would be unsuccessful. Second,

3 the district court applied the incorrect law for the two summary judgment orders,

4 and thus abused its discretion when it granted attorney’s fees. Finally, the district

5 court’s order was not based on particularized facts but rather on “mere restatement[s]

6 of the standard” for attorney’s fees. We conclude that none of these arguments

7 warrant reversal.

8 {47} The first and second arguments are not preserved. To show that an issue is

9 preserved for appeal, a party must establish that “a ruling or decision by the trial

10 court was fairly invoked.” Rule 12-321(A) NMRA. The Lujans do not identify any

11 place in the record where they made these arguments to the district court, see Rule

12 12-318(A)(4) NMRA, and we have found no indication of preservation in the record.

13 Because the Lujans have not asked us to apply any of the exceptions to the

14 preservation rule, see Rule 12-321(B), we decline to reach the merits of their first

15 two arguments.

16 {48} Turning to the Lujans’ final argument, we presume the district court did not

17 err—i.e., that it correctly applied the legal standard recited in its order to the relevant

18 facts. See Farmers, Inc., 1990-NMSC-100, ¶ 8. The Lujans bear the burden on

19 appeal of establishing otherwise, see id., but they have not done so. They have not

20 identified anything in the record that establishes that the district court failed to

28
 1 consider any relevant fact. Nor have they cited any authority for the proposition that

2 the district court’s order must include every fact it considered, and we therefore

3 assume no such authority exists. See Nguyen v. Bui, 2023-NMSC-020, ¶ 19, 536

4 P.3d 482.

5 VI. We Decline to Review the Arguments the Lujans Seek to Incorporate by
6 Reference
7 {49} Throughout the section of the Lujans’ brief in chief in which they argue that

8 the district court lacked jurisdiction, they attempt to incorporate by reference

9 arguments that they made in the district court instead of making those arguments in

10 their appellate briefs. We will not allow this because we conclude that it is a tactic

11 being used to “avoid[] the page limitations placed on briefs by the appellate rules,”

12 which contemplate that the appellate court decide “the issues, argument, and

13 authority contained in one manageable set of briefs.” State v. Aragon, 1990-NMCA-

14 001, ¶ 4, 109 N.M. 632, 788 P.2d 932. We granted the Lujans leave to exceed the

15 usual 11,000 word limit for a brief in chief by 4,500 words. Although the Lujans

16 filed a brief in chief that is itself less than 15,500 words, they have attempted to

17 incorporate by reference an additional fifty-one pages of arguments that they made

18 in the district court. This circumvention of the page limits is “an unacceptable

19 briefing practice,” and we therefore decline to address the arguments the Lujans

20 attempt to incorporate by reference. United Nuclear Corp. v. State ex rel. Martinez,

21 1994-NMCA-031, ¶ 5, 117 N.M. 232, 870 P.2d 1390.

29
 1 CONCLUSION

2 {50} We affirm.

3 {51} IT IS SO ORDERED.

4 _________________________________
5 ZACHARY A. IVES, Judge

6 WE CONCUR:

7 _________________________________
8 MEGAN P. DUFFY, Judge

9 _________________________________
10 JANE B. YOHALEM, Judge

30