The state Supreme Court refused Jan. 12 to hear Española businessman Richard Cook’s appeal of a decision that a state law allowing acequia commissioners to approve water rights transfers, does not violate the state constitution.
“They bounced it,” Duranes y Gavilan Ditch Treasurer Tim Viereck, of Ojo Caliente, said. “The Supreme Court didn’t want to hear it.”
Cook was appealing a state Court of Appeals ruling that had reversed a 2007 ruling by state District Court Judge Daniel Sanchez. Sanchez had concluded that appeals of water rights transfers must take place in front of a judge.
Cook filed lawsuits against acequia associations in Hernandez and Ojo Caliente in 2007, after the La Acequia del Gavilan and San Jose de Hernandez Community Ditch acequia commissions had separately denied requests to transfer water rights to Cook’s sand and gravel operation south of Ojo Caliente and the Peña Blanca real estate partnership in Hernandez. Cook was a member of Peña Blanca, which had sought to transfer water rights from the San Jose de Hernandez Community Ditch to the Agua Sana Water User’s Association for a subdivision near Chili.
Separately, Cook had bought water rights from six acres of land to transfer to a sand and gravel operation holding pond on his property south of Ojo Caliente.
Since 2003, state law has allowed acequia associations to adopt a rule requiring acequia commission approval of water rights transfers and both acequias had adopted such rules prior to Cook’s transfer applications.
But Cook claimed the 2003 law is unconstitutional because it does not allow for a full appeal before a judge.
Cook appealed the Appeals Court decision to the Supreme Court but the Court refused to hear the case — in effect, affirming the Court of Appeals decision.
The cases were sent back to District Court Feb. 20, where Sanchez will decide whether either acequia’s denial was arbitrary or capricous, now that constitutional questions have been settled.
Duranes y Gavilan Ditch Secretary Craig Borner believes that tradition as well as law is on the side of the acequia commissions.
“The way our acequia associations made a decision was consistent with longstanding tradition that water rights should not be separated from the property,” Borner said. “It’s always been that way.”
Cook and all attorneys involved in the case could not be reached for comment.