United States District Court, D. New Mexico
UNITED STATES OF AMERICA, and STATE OF NEW MEXICO, ex rel. STATE ENGINEER, Plaintiffs,
A & R PRODUCTIONS, et al., Defendants. and ZUNI INDIAN TRIBE, NAVAJO NATION, Plaintiffs in Intervention, Subfile No. ZRB-2-0038
RIVER BASIN ADJUDICATION
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED
FINDINGS AND RECOMMENDED DISPOSITION
matter is before the Court on cross-motions for summary
judgment (Docs. 3305, 3315, 3317), the United States' and
the State of New Mexico's (collectively,
“Plaintiffs”) motion to exclude expert opinion
testimony (Doc. 3316), Subfile Defendants Craig and Regina
Fredrickson's (“the Fredricksons”) request
for sanctions (Doc. 3320 at 12-15), the Magistrate
Judge's Proposed Findings and Recommended Disposition
(“PFRD”) (Doc. 3337), the Fredricksons'
objections thereto (Doc. 3345), and the Plaintiffs'
response to the objections (Doc. 3360). The PFRD recommended
granting the Plaintiffs' motion to exclude expert
testimony, denying the Fredricksons' request for
sanctions, denying the Fredricksons' motion for summary
judgment, and granting the Plaintiffs' motion for summary
their Objections, the Fredricksons do not address the
PFRD's recommendation that the Court grant the
Plaintiffs' motion to exclude expert testimony or deny
the Fredricksons' request for sanctions. Accordingly,
those recommendations are adopted and the Court adopts those
portions of the PFRD as its own Order. See 28 U.S.C.
§ 636(b)(1) (“A judge of the court shall make a de
novo determination of those portions of the [PFRD] to which
objection is made.”).
Fredricksons specifically object to the PFRD's
recommendation that the Court grant the Plaintiffs'
motion for summary judgment and deny the Fredricksons'
motion for summary judgment, and also to the PFRD's
recommendation that the Court conclude that the
Fredricksons' failed to establish a livestock water right
for well 10A-5-W06 or, in the alternative, abandoned any such
water right due to an extended period of nonuse without
reviewing a PFRD, the Court must make de novo determinations
of those portions of the PFRD to which any party made proper
objections. Fed.R.Civ.P. 72(b)(3); 28 U.S.C. §
636(b)(1)(C). Issues raised for the first time in objections
to the PFRD are deemed waived. United States v.
Garfinkle, 261 F.3d 1030, 1030-31 (10th Cir. 2001);
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
1996). Having conducted a de novo review to the objected-to
portions of the PFRD, the Court finds the objections to be
without merit for the following reasons.
PFRD thoroughly covered the factual background of this case.
The Court declines to reiterate that background here.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of “‘showing' . . . that there is an absence
of evidence to support the nonmoving party's case.”
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71
(10th Cir. 1998). Once the moving party has met this burden,
the nonmoving party must identify specific facts that show
the existence of a genuine issue of material fact requiring
trial on the merits. Bacchus Indus., Inc. v. Arvin
Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The
nonmovant must identify these facts by reference to
“affidavits, deposition transcripts, or specific
exhibits incorporated therein.” Adler, 144
F.3d at 671. A fact is “material” if, under the
governing law, it could have an effect on the outcome of the
lawsuit. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute over a material fact is
“genuine” if a rational jury could find in favor
of the nonmoving party on the evidence presented.
Id. A mere “scintilla” of evidence is
insufficient to successfully oppose a motion for summary
judgment. Id. at 252. The record and all reasonable
inferences therefrom must be viewed in the light most
favorable to the nonmovant. See Muñoz v. St.
Mary-Corwin Hosp., 221 F.3d 1160, 1164 (10th Cir. 2000).
When there are cross-motions for summary judgment, each
motion is to be treated separately. Christy v. Travelers
Indem. Co. of Am., 810 F.3d 1220, 1225 n.3 (10th Cir.
Fredricksons, as the users of water, bear the burden of
establishing a water right, regardless of which party moved
for summary judgment. Where the burden of persuasion at trial
would be on the nonmovant, the movant can meet Rule 56's
burden of production by either (1) providing affirmative
evidence negating an essential element of the nonmovant's
claim or (2) showing the Court that the nonmovant's
evidence is insufficient to demonstrate an essential element
of the nonmovant's claim. Celotex, 477 U.S. at
331 (citations omitted). Evidence provided by either the
movant or the nonmovant need not be submitted “in a
form that would be admissible at trial.” Id.
at 324. Rather, the content of the evidence presented must be
capable of being presented in an admissible form at trial.
Trevizo v. Adams, 455 F.3d 1155, 1160 (10th Cir.
2006). For example, parties may submit affidavits to support
or oppose a motion for summary judgment, even though the
affidavits constitute hearsay, provided that the information
can be presented in another, admissible form at trial, such
as live testimony. See Fed. R. Civ. P. 56(c)(4);
Johnson v. Weld Cnty., Colo., 594 F.3d
1202, 1209-10 (10th Cir. 2010); Trevizo, 455 F.3d at
when resolving objections to a magistrate judge's
proposal, “the district judge must determine de novo
any part of the magistrate judge's disposition that has
been properly objected to. The district judge may accept,
reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate
judge with instructions.” Fed.R.Civ.P. 72(b)(3). In
addition to requiring specificity in objections, the Tenth
Circuit has stated that “[i]ssues raised for the first
time in objections to the magistrate judge's
recommendation are deemed waived.” Marshall v.
Chater, 75 F.3d 1421, 1426 (10th Cir. 1996); see
United States v. Garfinkle, 261 F.3d 1030, 1030-31 (10th
further explained herein, the Court has conducted the
requisite de novo review to those of portions of the PFRD to
which the Fredricksons objected. The objections are overruled
and the PFRD is adopted as an Order of the Court.
Mexico state law provides the substantive standards for this
adjudication. (Doc. 2954 at 2.) The Constitution of the State
of New Mexico provides that “[t]he unappropriated water
. . . within the state . . . is hereby declared to belong to
the public.” N.M. Const. Art. 16 § 2.
“Beneficial use shall be the basis, the measure and the
limit of the right to the use of water.” Id.
at § 3. That is, a water user may acquire the right to
use water through beneficial use. N.M. Stat. Ann. §
72-1-2; State ex rel. Erickson v. McLean, 308 P.2d
983, 987 (N.M. 1957).“Beneficial use” means the
“direct use or storage and use of water by man for a
beneficial purpose including, but not limited to,
agricultural, municipal, commercial, industrial, domestic,
livestock, fish and wildlife, and recreational uses.”
N.M. Code R. 18.104.22.168(D) (2014). Adjudicated water rights
decrees must declare “the priority, amount, purpose,
periods and place of use.” § 72-4-19.
burden of proof with respect to quantifying a water right in
a stream system adjudication falls squarely on a defendant,
or the user of the water right.” State v.
Aamodt, No. Civ. 66-6639 MV/WPL, Subfile PM-67833, Doc.
8119 at 6 (D.N.M. Feb. 24, 2014) (unpublished) (citing