A. At the hearing before the board of county commissioners provided for in Section 73-12-3 NMSA 1978, the board shall proceed to determine whether the petition has been signed by the requisite number of petitioners; whether the lands in the proposed district are arid or semiarid lands; whether the lands are susceptible to irrigation and have a fertile soil that will warrant farming them by irrigation; whether there is a supply of water that can be made efficiently available for irrigation by the use of pumps; whether the proposed plan is practicable; and whether, on the whole, the development said to result from the introduction of power is of such interest and benefit to the whole district as to impress it with the character of public use. For the purpose of determining the public use of the operations of the proposed district and all other of the foregoing questions, the board of county commissioners is established as an inferior court and its decisions shall be binding upon all persons interested unless reversed on appeal as provided in this section, and if modified or affirmed, it shall be so binding.

B. If the board of county commissioners hearing the matter determines that the petition has been signed by the requisite number of petitioners as required by Chapter 73, Article 12 NMSA 1978 and determines that the proposed development is of such interest and benefit to the whole district as to impress with the character of public use, it shall then proceed to hear any objections, exceptions and protests that have been made in writing to the organization of the district or to the inclusion of any lands within the district or to the exclusion of lands from the district and other objections, exceptions and protests as may be presented in writing to the organization of the district. All persons whose lands have not been included in the proposed district, as defined in the petition, have the right to appear before the board at the time and place as parties interested in or affected by the organization of the district and have the right to petition that their lands be included within the district, and, if it appears to the board that the inclusion of such lands may be made without materially increasing the cost of service, the commissioners may by order include such lands within the district.

C. If the board makes findings approving of the organization of the district, it shall then proceed to define the boundaries of the proposed district from the petition and from applications in writing for the exclusion of lands and the inclusion of lands from and in the district, as may be made in accordance with the intent of Chapter 73, Article 12 NMSA 1978. The board may adjourn the meeting from time to time not exceeding three weeks in all and shall, by final order duly entered upon its records, allow the prayer of the petition and define and establish the boundaries of the proposed district. Provided that the board shall not modify the proposed boundaries described in the petition so as to change the objects of the petition or so as to exempt from the operation of Chapter 73, Article 12 NMSA 1978 any land within the boundaries proposed by the petition susceptible to irrigation by the same system or power works applicable to other lands in the proposed district. No land that will not, in the judgment of the board, be benefited by the proposed system shall be included in the district if its owner makes written application at the hearing to withdraw it.

D. Any persons aggrieved by the decision of the board of county commissioners, upon the hearing provided for in this section, are given the right of appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

E. When the petition has been allowed and the boundaries established and the name of the proposed district designated, which shall be ________ electrical district, the board of county commissioners shall, by further order duly entered upon its records, call an election of the qualified electors of the district to be held for the purpose of determining whether the district shall be organized under the provisions of Chapter 73, Article 12 NMSA 1978 and by such order shall submit the names of one or more persons from each of three divisions of the district, as provided in this section, to be voted for as directors therein, and for the purpose of the election shall divide the district into three divisions, as nearly equal in size as may be practicable, to be numbered, respectively, 1, 2 and 3 and shall provide that a qualified elector of each of the three divisions shall be elected as a member of the board of directors of the district by the qualified electors of the whole district. Each of the divisions shall constitute an election precinct and the commissioners shall appoint three judges for each of the precincts, one of whom shall act as clerk of the election.

History: Laws 1929, ch. 76, § 4; C.S. 1929, § 73-704; 1941 Comp., § 77-2404; 1953 Comp., § 75-25-4; Laws 1998, ch. 55, § 90; 1999, ch. 265, § 92.

Cross references. — For the Rules of Appellate Procedure, see 12-101 NMRA.

For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA.

The 1999 amendment, effective July 1, 1999, substituted "Section 39-3-1.1" for "Section 12-8A-1" in Subsection D.

The 1998 amendment, effective September 1, 1998, rewrote this section to the extent that a detailed comparison is impracticable.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 45 Am. Jur. 2d Irrigation § 58.

94 C.J.S. Waters § 319.