San Pedro Mining Corp. v. Board of County Commissioners

909 P.2d 754, 121 N.M. 194
CourtNew Mexico Court of Appeals
DecidedDecember 1, 1995
Docket16,103
StatusPublished
Cited by16 cases

This text of 909 P.2d 754 (San Pedro Mining Corp. v. Board of County Commissioners) 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
San Pedro Mining Corp. v. Board of County Commissioners, 909 P.2d 754, 121 N.M. 194 (N.M. Ct. App. 1995).

Opinion

OPINION

ALARID, Judge.

1. Plaintiff is the owner of a mine located in Santa Fe County. The Board of County Commissioners (County) held an administrative hearing and ruled that Plaintiffs mine is subject to the permit requirements of Santa Fe County’s Land Development Code. Plaintiff requested certiorari review from the district court, and the district court affirmed. Plaintiff appeals the district court’s decision. We affirm.

FACTS

2. Plaintiffs mine is located in an area historically mined for gold, silver, and copper. The mine was relatively inactive in the 1980s and early 1990s. In 1991, the County enacted a comprehensive Land Development Code that included extensive permit requirements for mines. The mining section of the code was then amended in 1993. Both the 1991 and 1993 ordinances included grandfathering provisions allowing “existing mines” (as defined by the ordinance) to continue operations without obtaining a permit. Both ordinances also contain provisions allowing a mine or exploration operation to remain in a state of “temporary cessation” for no more than three years, and to resume operations within that three-year period without obtaining a new permit. Early in 1994, Plaintiff was carrying on certain activities at the mining site. The County investigated and decided that the activities were illegal because Plaintiff had not obtained a permit under either the 1991 or 1993 ordinance. The County ordered Plaintiff to cease its activities or face legal action.

3. Plaintiff filed a district court action for an injunction and a declaratory judgment, maintaining that its mine was not subject to the permit requirements of either ordinance. The district court ordered the County to hold proper administrative proceedings to determine whether the ordinances were applicable to Plaintiff. During these proceedings, Plaintiff presented testimony from a number of witnesses and introduced many exhibits. The County, as noted above, determined that Plaintiffs mine was not excepted from the permit requirements, and Plaintiff filed a petition for writ of certiorari with the district court.

4. The district court allowed two new participants: Intervenors, a neighborhood association opposed to Plaintiffs plans to mine without first obtaining a permit, and Amicus Curiae, the State of New Mexico. The State’s involvement in the case was limited to briefing an issue raised by Plaintiff concerning the new Mining Act, NMSA 1978, §§ 69-36-1 to -20 (Repl.Pamp.1993) (the Act), enacted in 1993. Plaintiff maintained that the Act and the regulations promulgated pursuant to the Act preempted the County’s power to regulate mining activity within its jurisdiction, and the State’s brief responded to that contention.

5. The district court upheld the County’s decision after reviewing the exhibits and record of the administrative proceedings, and this appeal has resulted. On appeal, Plaintiff contends that the County’s ordinances have been preempted by the Act and the State’s regulations and maintains that, even if no preemption occurred, it is nevertheless exempt from the permit requirement under the terms of those ordinances.

■6. For ease of reference, throughout this opinion we refer to the parties opposing Plaintiffs position as the County, whether the specific arguments made in response to Plaintiff were made in the County’s brief, the Intervenors’ brief, or the State’s brief.

I. PREEMPTION

7. The district court ruled that the Act and its regulations did indeed preempt the County’s regulatory authority over mining activities. The district court also ruled, however, that the County retains some residual zoning power, and that under that residual power it could require Plaintiff to obtain a permit and impose conditions upon the grant of such a permit. Under- the district court’s decision, therefore, the County’s permit requirements can be upheld only if their promulgation was a proper exercise of the County’s zoning power rather than its regulatory power. To address this decision, Plaintiff concedes that the County retains some zoning power, but contends that the only attribute of that authority is the ability to decide whether mining can occur at a certain location. That is, Plaintiff argues that the County can determine where mining activity can take place, but cannot at all regulate how it will take place, and maintains that the conditions imposed on permit issuance under the County’s ordinances exceed the County’s zoning power.

8. We do not need to decide whether the County’s authority over mining should be termed a zoning power or regulatory power, or to delineate the exact limitations of a power to zone. The question in this case is whether the County’s power to do anything other than decide the location of mining activity has been preempted by the passage of the Act and by the promulgation of the regulations designed to carry out that Act. We hold that such preemption has not occurred.

A. Express Preemption

9. A local governmental body’s ability to regulate in an area may be preempted either expressly, by the language of a statute, or impliedly, due to a conflict between the local body’s ordinances and the contents, purposes, or pervasive scheme of the statute. See Jicarilla Apache Tribe v. Board of County Comm’rs, 118 N.M. 550, 554, 883 P.2d 136, 140 (1994) (discussing federal-state preemption); Little Falls Township v. Bardin, 173 N.J.Super. 397, 414 A.2d 559, 566 (App.Div.1979) (court must determine whether state scheme is so pervasive that it effectively precludes the co-existence of municipal regulation, or whether the local regulation conflicts with the state statute or stands as an obstacle to accomplishing the legislature’s objectives). A local government is presumed to retain the power to exercise its normal authority over an activity, so the intention of the legislature to preempt local control must be clearly stated if express preemption is to result. See State ex rel. Schillberg v. Everett Dist. Justice Court, 92 Wash.2d 106, 594 P.2d 448, 450 (1979) (en banc) (a statute will not be construed to take away municipal power unless this intent is clearly and expressly stated).

10. Plaintiff argues that the legislature has expressly preempted local authority over mining in Section 69-36-4(B) of the Act. That provision states: “After the effective date of the New Mexico Mining Act and until the commission adopts regulations necessary to carry out the provisions of the New Mexico Mining Act, county mining laws or ordinances shall apply to mining within their jurisdictions in New Mexico.” It is certainly possible to read this Section as Plaintiff does, to mean that once the referenced regulations are adopted, no county regulation or ordinance shall apply to mining activity, whether or not the ordinance conflicts with the state regulations or the statute.

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Bluebook (online)
909 P.2d 754, 121 N.M. 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/san-pedro-mining-corp-v-board-of-county-commissioners-nmctapp-1995.