Tri-State Generation & Transmission Ass'n v. D'Antonio

2011 NMCA 014, 249 P.3d 924, 149 N.M. 386
CourtNew Mexico Court of Appeals
DecidedAugust 31, 2007
Docket30,797
StatusPublished
Cited by4 cases

This text of 2011 NMCA 014 (Tri-State Generation & Transmission Ass'n v. D'Antonio) 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
Tri-State Generation & Transmission Ass'n v. D'Antonio, 2011 NMCA 014, 249 P.3d 924, 149 N.M. 386 (N.M. Ct. App. 2007).

Opinion

OPINION

PICKARD, Judge.

{1} Respondent, the New Mexico State Engineer (State Engineer), seeks to appeal the district court’s order reversing portions of the State Engineer’s Active Water Resource Management (AWRM) regulations on the basis that some of the regulations are unconstitutional. At issue is whether the State Engineer should have sought review by our Court by filing a petition for writ of certiorari or by filing a notice of appeal. We take this opportunity to discuss the proper procedure for seeking review of the State Engineer’s adoption of regulations, and we hold that the State Engineer’s filing of a notice of appeal is both appropriate and timely.

BACKGROUND

{2} In 2003, the legislature enacted NMSA 1978, § 72-2-9.1 (2003), which states that

the adjudication process is slow, the need for water administration is urgent, compliance with interstate compacts is imperative and the state engineer has authority to administer water allocations in accordance with the water right priorities recorded with or declared or otherwise available to the state engineer.

Section 72-2-9.1(A). The statutory provision further provides that “[t]he state engineer shall adopt rules for priority administration to ensure that authority is exercised.” Section 72-2-9.KB).

{3} Relying on Section 72-2-9.1, the State Engineer drafted regulations for the management and regulation of water and made the regulations available for public comment. See NMSA 1978, § 72-2-8 (1967) (addressing the State Engineer’s authority to promulgate regulations). Many comments in opposition were received in writing, at a public hearing, and in private meetings. In response to the comments, the State Engineer revised some of the regulations. The revised AWRM regulations were adopted as final regulations in December 2004.

{4} Following the enactment of the AWRM regulations, Petitioners filed a Rule 1-075 NMRA petition for writ of certiorari in district court. The parties agreed below that the proceedings were Rule 1-075 proceedings and the district court conducted its review pursuant to Rule 1-075.

{5} The district court subsequently ruled partially in Petitioners’ favor and reversed portions of the regulations on the basis that some of the provisions were unconstitutional. The State Engineer did not file a petition for writ of certiorari within twenty days of the district court’s order, as required by Rule 12-505(0 NMRA. Instead, the State Engineer filed a notice of appeal twenty-nine days after the district court’s order. On the same day, the State Engineer filed a “Motion for Extension of Time and the Determination of the Applicable Process for an Appeal by the New Mexico State Engineer in this Case.” That motion is the matter currently before this Court.

DISCUSSION

{6} In its motion, the State Engineer requests both an extension of time to file a petition for writ of certiorari, if necessary, and a clarification from our Court regarding the proper process for an appeal in such cases. According to the State Engineer, “[i]t is not clear whether the proper avenue for the Petitioners’ challenge was an administrative appeal under Rule 1-075, or whether the Petitioners should have availed themselves of their statutory right of appeal under NMSA 1978, § 72-7-KA) (1971).” The State Engineer expresses confusion over whether review by this Court should be obtained by petition for writ of certiorari or by filing a notice of appeal.

{7} In response, Petitioners argue that the State Engineer is seeking to excuse its failure to file a petition for writ of certiorari within twenty days of the district court’s final order “by feigning ignorance and ambiguity about the status of the proceedings in this case,” when it was clear to all the parties involved that Rule 1-075 was applicable. Petitioners further assert that because “the State Engineer failed to comply with the simple and unambiguous provisions of Rule 12-505, ... the State Engineer’s request for extension of time to file his petition should be denied and the tardy appeal should be dismissed.”

{8} We take this opportunity to address the proper procedure for appealing the adoption of rules and/or regulations by the State Engineer. Additionally, we address whether dismissal is mandated if Petitioners sought review of the State Engineer’s actions in an incorrect manner. Lastly, we address the effect of the State Engineer’s acquiescence to the application of Rule 1-075 to the proceedings.

Rule 1-075

{9} Rule 1-075 is one of the “two rules of civil procedure governing district court review of administrative decisions or orders.” Dixon v. State Taxation & Revenue Dep’t, 2004-NMCA-044, ¶ 2, 135 N.M. 431, 89 P.3d 680; see Rule 1-074(A) NMRA (governing review from agency decisions where “there is a statutory right of review to the district court”). Rule 1-075 “governs writs of certiorari to administrative officers and agencies pursuant to the New Mexico Constitution when there is no statutory right to an appeal or other statutory right of review.” Rule 1-075(A). Under this rule, a party aggrieved by a final decision or order of an agency may seek district court review of the decision or order by filing a petition for writ of certiorari in the district court within thirty days of the agency action. Rule 1-075(B), (D). After issuing the writ of certiorari,

[t]he district court may enter an order reversing the decision of the agency if it finds that:

(1) the agency acted fraudulently, arbitrarily or capriciously;
(2) based upon the whole record on review, the decision of the agency is not supported by substantial evidence;
(3) the action of the agency was outside the scope of authority of the agency; or
(4) the action of the agency was otherwise not in accordance with law.

Rule 1-075(Q). A party then wishing appellate review of the decision of the district court must file a petition for writ of certiorari “within twenty (20) days after entry of the final action by the district court.” Rule 12-505(C); see Paule v. Bd. of County Comm’rs, 2005-NMSC-021, ¶ 14, 138 N.M. 82, 117 P.3d 240 (“A party aggrieved by the district court’s order in an administrative appeal may seek review of the decision by filing a petition for writ of certiorari with the Court of Appeals.”).

{10} In the present case, Petitioners invoked the appellate jurisdiction of the district court by filing a petition for writ of certiorari pursuant to Rule 1-075 within thirty days of the State Engineer’s order adopting the AWRM regulations. If, as Petitioners maintain, Rule 1-075 was indeed the proper avenue to challenge the AWRM regulations, the State Engineer needed to file a petition for writ of certiorari within twenty days of the district court’s order ruling portions of the regulations unconstitutional. See Rule 12-505(C); Paule, 2005-NMSC-021, ¶ 14, 138 N.M. 82, 117 P.3d 240; Dixon, 2004-NMCA-044, ¶¶ 3-8, 135 N.M. 431, 89 P.3d 680.

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Cite This Page — Counsel Stack

Bluebook (online)
2011 NMCA 014, 249 P.3d 924, 149 N.M. 386, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tri-state-generation-transmission-assn-v-dantonio-nmctapp-2007.