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United States v. A & R Productions

United States District Court, D. New Mexico

March 29, 2017

UNITED STATES OF AMERICA, and STATE OF NEW MEXICO, ex rel. STATE ENGINEER, Plaintiffs,
v.
A & R PRODUCTIONS, et al., Defendants. and ZUNI INDIAN TRIBE, NAVAJO NATION, Plaintiffs in Intervention, Subfile No. ZRB-2-0038

         ZUNI RIVER BASIN ADJUDICATION

          ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         This 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 judgment.

         In 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.”).

         The 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 sufficient justification.

         In 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.

         The PFRD thoroughly covered the factual background of this case. The Court declines to reiterate that background here.

         LEGAL STANDARD

         Summary 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. 2016).

         The 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 1160.

         Finally, 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 Cir. 2001).

         DISCUSSION

         As 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.

         New 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).[1]“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. 19.26.2.7(D) (2014). Adjudicated water rights decrees must declare “the priority, amount, purpose, periods and place of use.” § 72-4-19.

         “The 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 ...


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