Forthcoming Pubs from UAP's Jesse Richardson on Cons Easements, Dillon Rule, Water Law

UAP’s Jesse Richardson has two forthcoming articles, one related to conservation easements and the second focusing on the Dillon Rule.

(1) "Zoning for Conservation Easements", in Volume 74, Duke Journal of Law and Contemporary Problems (Fall 2011) (co-authored with MURP graduate Amanda Bernard).

(2) "Dillon's Rule is From Mars, Home Rule is From Venus: Local Government Autonomy and the Rules of Statutory Construction", in Publius: The Journal of Federalism.

Jesse also is authoring an amicus curiae ("friend of court") brief on behalf of 16 clients in an extremely important water law case in the Supreme Court of New Mexico. The case, Bounds v. D'Antonio, involves "exempt wells". Exempt wells primarily exist in states that use the prior appropriation rule for groundwater rights (western states). Prior appropriation gives rights to use the water based on the time of the initial use- “first in time, first in right”. The first landowner to beneficially use or divert the water gains priority of right. In times of water shortage, the first appropriator gets his full amount, then the second appropriator, and so forth until the water is exhausted. Junior appropriators receive no water in times of scarcity.

Thirteen states use the prior appropriation rule for groundwater. Add to this list four other states that use other legal rules for groundwater rights, but have permitting systems that provide at least some limited exemption from those rules for some water wells. Of these 17 states, Utah is the only state that does not exempt some water wells from the prior appropriation rules.

Bounds specifically involves the exemption for domestic water wells. Bounds, a farmer, holds senior groundwater rights in a basin that is fully appropriated (rights to all of the water in the basin has been assigned). New Mexico law requires the state engineer to issues a perimit for a domestic water well whenever a homeowner applies for one. Bounds filed suit against the state engineer, claiming that the law deprives him of his property rights without just compensation and without due process of law. Bounds also claims that the domestic well exemption violates the prior appropriation doctrine.

The trial court ruled in favor of Bounds, finding that the law violates the due process clause of the New Mexico Constitution. The New Mexico Court of Appeals reversed, finding that the state legislature and the state engineer have discretion in implementing the broad provisions of prior appropriation. Bounds appealed to the Supreme Court of New Mexico.

Richardson represents sixteen clients from across the country (including ground water associations from Virginia to Idaho and Washington State, and private companies) in drafting a amicus curiae ("friend of court") brief in the case supporting the constitutionality of the law. Although the case is only binding within New Mexico, the case is likely to have effects across the west, and even with respect to water rights and land use planning in the east.

Exempt wells are not only a contentious issue for water law, but also in land use planning. Opponents of exempt wells contend that they promote sprawl and cumulative impact on water resources. Supporters of exempt wells cite the fact that exempt wells are often the only source of water for houses in rural areas and the administrative burden of having to process prior appropriation rights for tens of thousands of domestic water wells, each of which only uses a small amount of water.