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State engineers need longevity in office

February 11, 2019

The New Mexico state engineer is not just another agency chief or Cabinet member who manages a bureaucracy. The state engineer exercises an extremely important adjudicatory function in New Mexico, ruling on people’s water rights. In this regard, he or she acts as a judge who must be seen as independent from influence by the governor, other individuals and special interest groups. This is the presumption of our water code.

For this reason, the appeal from state engineer decisions is to the courts, not to the governor or any other executive department official. In addition, the job requires longevity beyond the normal Cabinet term of four to eight years to build and exercise the competency required of the state engineer.

Ever since former Gov. Gary Johnson broke with longstanding tradition and replaced the state engineer at the beginning of his term as governor, new governors have installed a new state engineer at the start of their terms. The frequency of replacement of the state engineer became even greater recently when former Gov. Susana Martinez replaced the state engineer in the middle of her term as governor, ousting the state engineer she herself had earlier appointed.

For many years, New Mexico had a towering figure, Steve Reynolds, as state engineer. He served from 1956, when he was appointed by Gov. John Simms, until he died in 1990. His tenure as state engineer spanned many terms of governors of both political parties. He served as state engineer for 34 years, even though the statutory term for state engineer is only two years.

Over time, he established a reputation for competence and integrity. He came to be the most revered figure in state government. As a result, whenever governors during that period considered replacing Reynolds, they ran into a wall of opposition and soon reconsidered and withdrew the idea. This was important because it meant that Reynolds was independent and not beholden to any particular governor or special interest. In fact, he canceled some of Simms’ personal water rights while Simms was still in office. Yet, Simms was heard to say years later that the single most important thing he did as governor was to appoint Steve Reynolds state engineer.

Other states do not allow their water rights decision-makers to be switched at the behest of an incoming governor. In Colorado and Kansas, for instance, the counterparts to our state engineer are civil servants protected by the civil service system or by a strong tradition of retention during good behavior, independent of gubernatorial terms.

Routine switching of those serving as New Mexico’s state engineer should be brought to a halt. State engineers should be given the longevity that will allow them to establish and develop the competence and integrity that New Mexico had in Steve Reynolds.

New Gov. Michelle Lujan Grisham and the Legislature should make the term of the state engineer 10 years instead of two years. As now, the state engineer should be removable only for cause, and should not be expected to resign at the beginning of new administrations. We can’t expect every, or perhaps any, state engineer to match Reynolds, but we can reinstitute the tradition that he exemplified of long-term service fostering competence, integrity and independence.

John Draper is a New Mexico water attorney with 40 years of experience before the state engineer, the New Mexico courts and the federal courts, including more than 25 continuous years representing states in water cases before the U.S. Supreme Court. He lives in Santa Fe.

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