New Mexico Cattle Growers' Ass'n v. New Mexico Water Quality Control Commission

2013 NMCA 046, 3 N.M. 681
CourtNew Mexico Court of Appeals
DecidedMarch 29, 2013
DocketNo. 34,010; Docket No. 31,191
StatusPublished
Cited by1 cases

This text of 2013 NMCA 046 (New Mexico Cattle Growers' Ass'n v. New Mexico Water Quality Control Commission) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Mexico Cattle Growers' Ass'n v. New Mexico Water Quality Control Commission, 2013 NMCA 046, 3 N.M. 681 (N.M. Ct. App. 2013).

Opinion

OPINION

KENNEDY, Judge.

{1} This case examines whether the New Mexico Cattle Growers’ Association properly appealed from a regulatory proceeding of the New Mexico Water Quality Control Commission (WQCC) directly to this Court by showing that it is adversely affected by the adopted regulations as is required by statute. The Cattle Growers’ Association appealed the WQCC’s designation of named perennial waters within United States Forest Service Wilderness Areas as Outstanding National Resource Waters. We hold that the Cattle Growers’ Association has not shown that it is adversely affected, thus failing to establish a statutory requirement for pursuing its appeal, which we dismiss.

I. BACKGROUND

{2} The New Mexico Environment Department, New Mexico Department of Game and Fish, and New Mexico Energy, Minerals and Natural Resources Department (collectively, Departments) petitioned the WQCC to nominate surface waters in Forest Service Wilderness as Outstanding National Resource Waters and amend the WQCC’s anti-degradation policy pursuant to 20.6.4 NMAC and NMSA 1978, Section 74-6-4 (1993). TheDep artments initiated the p etition on February 25, 2010, after over a year of public outreach across the state. The WQCC accepted the petition and set a hearing date in September 2010. The Departments then moved to amend their petition to limit its scope by excluding intermittent waters and tributaries.

{3} The Cattle Growers’ Association is an organization that exists to support the cattle industry in Ne w M exico. O ne o f its go als is to provide an official and united voice on issues of importance to the cattle producers and feeders. In a motion to the WQCC, it challenged both the original petition and the motion to amend. The hearing officer denied the Cattle Growers’ Association’s motion, but ordered the Departments to re-publish notice of the narrowed petition. The amended petition was submitted to the WQCC on May 17, 2011.

{4} Several organizations and individuals submitted Notices of Intent to Submit Technical Testimony to the WQCC. Among them were the Cattle Growers’ Association, local water commissions, individual citizens, and environmental and avocational groups concerned with wilderness streams, including WildEarth Guardians, Amigos Bravos, New Mexico Baclccountry Hunters and Anglers, New Mexico Trout, and New Mexico Wildlife Federation. The WQCC held a hearing on the petition on September 14 through 17, and October 12 through 14, 2010. The parties subsequently provided written closing arguments.

{5} The WQCC adopted the amendedpetition on November 30, 2010. The adoption was codified in an Order and Statement of Reasons dated December 16, 2010. The Cattle Growers’ Association appealed, claiming that the designation of waters in the order was too sweeping and that the petition included fatal procedural flaws. Amigos Bravos and several other environmental groups intervened as Appellees.

II. DISCUSSION

{6} The Departments argue that the Cattle Growers’ Association may not appeal, claiming that the Cattle Growers’ Association was unaffected by the regulations because grazing permittees, as a designated preexisting land use, were specifically exempted from Outstanding National Resource Waters requirements. 20.6.4.8(A)(3)(d)NMAC. The Departments argue that, due to this exception, the evidence at the hearing showed that there would be no negative economic impact on the grazing allotments affected by Outstanding National Resource Waters designation. The Cattle Growers’ Association did not claim in its brief that it is adversely affected by the regulations, thus allowing it to bring the appeal. It also filed no reply in response to the Departments’ argument.

{7} The governing statute, NMSA 1978, § 74-6-7 (1993), provides that appeals from the WQCC may be heard by this Court if a petitioner is “adversely affected by a regulation adopted by the commission” or has “participated in a permitting action or appeal of a certification before the commission and . . . is adversely affected by such action[.]” Section 74-6-7(A). When evaluating this apparent limitation to bringing suit under a statutory cause of action, we look to the Legislature’s intent as expressed in the act or other relevant authority. Key v. Chrysler Motors Corp., 1996-NMSC-038, 121 N.M. 764, 768-69, 918 P.2d 350, 354-55.

{8} Section 74-6-7 twice states the Legislature’s intent that only those “adversely affected” by a regulation may appeal from the regulation’s adoption. The requirement applies both those who participated in the rulemaking and those who did not. We note that the statute previously permitted an appeal by “any person who is or may be affected by a regulation.” Kerr-McGee Nuclear Corp. v. N.M. Water Quality Control Comm’n, 98 N.M. 240, 242, 647 P.2d 873, 875 (Ct. App. 1982) (alteration, internal quotation marks, and citation omitted). The law of statutory construction presumes that when the Legislature amends a statute, it intends to change the existing law. Wasko v. N.M. Dep’t of Labor, 118 N.M. 82, 84, 879 P.2d 83, 85 (1994). Here, the change narrows the law by placing a heightened requirement that the appellant experience an adverse effect, indicating the Legislature’s intent to restrict the field of potential appellants.

{9} The issue of adverse impact is usually found in cases addressing standing. See Key, 1996-NMSC-03 8. “Where the Legislature has granted specific persons a cause of action by statute, the statute governs who has standing to sue.” San Juan Agric. Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶ 8, 150 N.M. 64, 257 P.3d 884. There is no significant difference between having standing to sue and having a cause of action. Key, 1996-NMSC-038, 121 N.M. at 768, 918 P.2d at 354. “When a statute creates a cause of action and designates who may sue, the issue of standing becomes interwoven with that of subject matter jurisdiction.” Disabled Am. Veterans v. Lakeside Veterans Club, Inc., 2011-NMCA-099, ¶ 7, 150 N.M. 569, 263 P.3d 911 (internal quotation marks and citation omitted). When the issue of standing is considered jurisdictional, it may be raised at any stage of the proceedings, even sua sponte by the appellate court. Id. (clarifying that “standing is a jurisdictional question because [the statute] creates a cause of action and explicitly designates who is entitled to bring an action under that provision”).

{10} Adverse effect usually arises in standing cases because, unlike in this case, the parties are not governed by a statutory cause of action and, therefore, must challenge on constitutional grounds to which standing is the threshold issue. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 883 (1990) (holding that “to be ‘adversely affected or aggrieved within the meaning’ of a statute, the plaintiff must establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint” (alteration omitted); Mt.

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2013 NMCA 046, 3 N.M. 681, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-mexico-cattle-growers-assn-v-new-mexico-water-quality-control-nmctapp-2013.